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Treat Older Workers Equally Despite Virus Risk, EEOC Says

June 11, 2020, 4:00 PM

Companies can’t exclude older employees from a workplace even if public health authorities advise that they could be at higher risk for a severe case of Covid-19, the Equal Employment Opportunity Commission said in updated guidance.

Workers over the age of 40 are protected by the Age Discrimination in Employment Act, which would prohibit an employer from treating an older worker differently than a younger worker, “even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness,” the federal workplace civil rights agency said Thursday.

Unlike federal disability protections that allow reasonable job accommodations for workers with disabilities, the ADEA doesn’t have similar provisions for older workers.

“However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison,” the EEOC said. An older worker with a medical condition could also seek a reasonable accommodation under the Americans with Disabilities Act.

The agency has been updating its commonly asked questions page throughout the coronavirus pandemic to inform employers of how they can comply with federal workplace civil rights law. The agency has advised companies on how to proceed with workplace dilemmas, ranging from workers with medical issues that could cause a more severe case of Covid-19 to unbiased protocols companies can take to ensure a safe workplace.

In addition to the answer on older workers, the agency clarified that unlawful harassment that occurs over email while employees are teleworking must be handled as though the employees were in the office. It also said the ADA doesn’t entitle workers with a high-risk family member to reasonable accommodations, since the workers themselves don’t have a disability.

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com