COVID-19 Update: Employers warned about age discrimination amid return to work

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued updated guidance for employers preparing to reopen workplaces after months of remote work due to the pandemic. Public health authorities have stated that people aged 65 and over are at a higher risk for the adverse effects of COVID-19 if exposed to the coronavirus, which raises concerns about age discrimination in the workplace.
 
The EEOC urged employers to be careful when making employment decisions based on age, even if they are driven by good intentions to safeguard older employees’ health. Workers age 65 and over are still protected under federal age discrimination laws. As long as older employees can carry out their job duties, employers cannot legally tell them not to return to the workplace based on the COVID-19 risk factors associated with their age.
 
According to federal guidelines, employers are allowed to offer flexible arrangements to employees age 65 and over, even when doing so leads to the disparate treatment of younger employees ages 40 to 64. Although the employer is not legally obligated to participate in an interactive process with an employee who requests age-based accommodation, the employer can ask the employee for input on possible solutions. For instance, a company can allow older employees to telework or modify their work schedules to ensure minimal interactions with others in the workplace to reduce coronavirus exposure.
 
The Age Discrimination in Employment Act makes it unlawful to discriminate against employees age 40 and older. Still, it does not require employers to provide older workers with reasonable accommodations solely due to their age. If they have health conditions that qualify as disabilities, employees age 65 or older can request reasonable accommodations from their employer under the Americans with Disabilities Act. 
 
The COVID-19 pandemic has presented new challenges for workplaces throughout California. If you suspect your employer is discriminating against you based on your age, contact the age discrimination lawyers at Erlich Law Firm to discuss your situation.