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Older Workers Returning to Office Fear Both Virus and Job Loss

May 26, 2020, 10:15 AM

Older workers, among the most vulnerable to the deadly consequences of the coronavirus, face a sobering choice: Return to work and risk exposure, or refuse and face potential retaliation.

If this growing sector of the workforce wants to challenge hiring and firing decisions in court, they’ll encounter legal hurdles while dealing with a more difficult economic recovery compared to younger workers. Return-to-work plans on the horizon and companies reducing their workforce may mean a spike in age discrimination claims, employment attorneys and academics say.

“Any time there is an economic event or downturn, the older workers bear the brunt of it. The potential is even greater because of the concerns about the virus hitting older people and making them more vulnerable,” said Laurie McCann, senior attorney with the AARP Foundation, adding that older workers already face higher burdens than others alleging workplace discrimination. “This will be key during Covid-19, where age discrimination is not viewed through a civil rights lens but through an economic lens.”

Workers over the age of 65 are the fastest growing sector of the workforce. This group also represents about 74% of coronavirus infections and deaths, according to recent statistics.

AARP research has found that older workers are at risk of layoffs in times of economic uncertainty and have more difficulty getting rehired at previous wages when displaced. Meanwhile, the Economic Policy Institute found that nearly three-fourths of workers age 65 and older—or over 5 million workers—can’t telecommute and may already be exposing themselves to the virus.

While the Age Discrimination in Employment Act protects workers 40 years and older from bias, there’s no requirement to accommodate continued telework requests and the bar is high for proving age bias in workforce reductions, even in the case of increased litigation. Employers are now watching closely for guidance from the Equal Employment Opportunity Commission, as well.

“Employment decisions were made quickly. When that happens, there is room for error and the plaintiffs bar knows that,” said Anjanette Cabrera, partner at Constangy, Brooks, Smith & Prophete, who represents employers. “There is a land mine of potential claims if you force someone to go back into the work environment and they get sick. There is still so much that is unknown here.”

Employers shouldn’t target older workers in mass layoffs and will have to prove they have a reason for the reduction other than age, said Conor Ahern, an attorney with Sanford, Heisler & Sharp, which represents workers. That could be a difficult argument to overcome, as economic cuts may seem reasonable at a time businesses feel the strain of the country’s closure.

“The sad thing is, as far as where we are right now, these individuals might not have legal recourse,” Ahern said. “You can imagine a situation where no one blinks an eye to lay people off or lower salaries because of the macroeconomic effects of the coronavirus.”

Red Flags

Already, 62-year-old Mark Kanyuk, a global manager of facilities and audiovisual infrastructure, filed a lawsuit claiming his employer law firm Shearman & Sterling used Covid-19 as a pretext to end his career. Kanyuk said during his 25 years at the firm, he received promotions, raises, and good performance evaluations. But recently, he said he was called an “old man” by his supervisor 20 years his junior and said his age was the reason he was fired.

Needing to reduce costs and to cut jobs “in the era of Covid 19,” Shearman & Sterling “chose to start the layoffs with one of its oldest and most committed employees,” the lawsuit claims. The firm denied the allegations in a statement and said Kanyuk was terminated for inappropriate conduct.

Each case will be a fact-based analysis, but some red flags may suggest that the employer is targeting an employee or a group of employees because of their age rather than a legitimate business need to reduce the workforce, said Eric Bachman, an attorney in Washington with Zuckerman Law, who represents workers.

Companies that have a small layoff of only experienced, older, and higher-paid employees, while keeping less expensive employees, are at risk of lawsuits, he said. Other warning signs include comments made about age and employers hiring back younger employees in a short period of time. Incorrect assumptions could be made about older workers having costlier benefits or being more susceptible to Covid-19, or that they’re ill-equipped to perform in a more remote, technological environment, he said.

“While most companies will follow the law, my bet is that certain employers are going to use this as an opportunity to shed older workers who have higher salaries and are closer to retirement age,” Bachman said. He added, “A heartbreaking aspect of this rehiring process will be scenarios in which older workers are concerned about returning to work in-person if Covid-19 infection rates are still high. If the employer won’t allow them to work remotely, these older employees may literally be forced to choose between losing their job or possibly their life.”

Layoffs Hit Older Workers

Early reports from the pandemic show that workers 55 and older are being hit hard by the layoffs, and historically, they’ll suffer worse consequences, said Monique Morrissey, economist at the Economic Policy Institute.

Even before the pandemic, the AARP found that more than half of older workers are forced out of a job before they intend to retire, and even if they find work again, 9 in 10 never match their prior earnings. The Urban Institute also found that older workers are less likely to be reemployed compared to younger workers, and that new jobs for older workers fall by as much as 20% compared to 4% for the younger workforce.

“The economic effects are worse. When employers start to rehire, older workers will be disproportionately unemployed,” Morrissey said. “We aren’t used to workers scared to go back: It’s much riskier for older workers to return. Workers who are lower paid won’t have the financial choice to stay out of the labor market.”

Disability Law Intersection

Key to proving an age discrimination claim will be how reasonable the layoff or reduction in force was for the company, and widespread economic pain may be something a judge may find reasonable, said the AARP Foundation’s McCann.

“The reasonableness standard may be easier to meet,” McCann said. “I think it’s wrong but it’s realistic. That’s where you hope employers are reasonable and allow greater flexibility going forward.”

Employment attorneys are advising flexibility when possible and warned employers could also hit legal pitfalls with the intersection of disability laws.

Employers also must consider underlying health conditions and the legal protections these workers could have under applicable disability laws, said Anna Suh, counsel at Fenwick & West. An employer isn’t required to accommodate an employee who refuses to return to work out of fear of getting Covid-19, even if he or she is older.

“Just because someone is in a high-risk category doesn’t necessarily mean accommodations must be provided,” Suh said. She recommends to her employer clients that they engage in a discussion with the employees about the underlying reasons for their concerns. “In that discussion, the employees may disclose that there are underlying health conditions that present additional risks and may warrant accommodations.”

In the end, an employer can’t assume older workers have conditions, said Seyfarth Shaw partner Joshua Ditelberg.

“Certainly, older workers should not be the victim of age stereotyping or stereotypical assumptions about their health conditions,” Ditelberg said.

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Cheryl Saenz at csaenz@bloombergtax.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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