As restrictions lift and America reopens, businesses need to keep in mind how drastically the landscape of in-person work has shifted. Customers and employees alike have new and different expectations of employers and how the workplace should safely operate. The U.S. Equal Employment Opportunity Commission recently released new guidance that lays out the potential risks of compelling workers who are 65 or older to stay home to protect their health.
Even when you have your employees’ best interests at heart, the EEOC says procedures that single out older employees could violate age-bias laws. This is true even though the Centers for Disease Control identifies people over 65 as high-risk for Covid-19. With this in mind, we’ve outlined 10 things to consider when creating return-to-work policies.
1.Facilitate an open dialogue with all employees about returning to work.
First, you should talk to all of your employees about the reopening process, or at least provide a way for all employees to voice their concerns. This way every employee feels heard and it will give an overall sense of what they are feeling—particularly older employees—in creating reopening procedures. Some employers have done this in the form of a survey, which acts as an age-neutral way to assess the general climate and potential challenges to reopening.
2. Employers can’t force employees to continue to telework based solely on age.
Even though employers may desire to protect high-risk employees by forcing them to maintain a work-from-home status, this could form the basis of an age discrimination lawsuit under the Age Discrimination in Employment Act. Of course, you should be aware of any high-risk employees, but it is critical that new policies are not solely based on a worker’s age.
3. Employers are not required to provide reasonable accommodations to employees based on age.
While it does protect older employees from age discrimination, the ADEA does not require employers to reasonably accommodate employees on the basis of age, even for those employees who are older and at a higher risk of incurring severe illness due to Covid-19. But it is advisable to adapt to employees’ needs, especially older workers who may express concern or apprehension at returning to work. But, the Americans with Disabilities Act does require employers to provide reasonable accommodations to an employee with a disability or certain medical conditions.
4. Set clear, age-neutral policies for employees.
The best way to avoid an age discrimination lawsuit is to communicate clear, age-neutral policies about returning to work and any new workplace procedures. Even well-intentioned age-based policies could be perceived as discriminatory. Be sure to outline what precautions are being taken to protect the health of employees and facilitate a process for employees to express their concerns.
5. Businesses are free to be flexible with older employees.
Though you may not create policies solely based on age, the EEOC noted that employers may still provide flexibility to employees over 65 without legal consequences. But if a business does provide extra accommodation for an employee over 65, the ADEA does not prohibit these actions if it means that other employees who are also protected by the statute (like those age 40-64) receive less favorable treatment in comparison.
6. Offer telework as an option when able.
To ensure that no policies are based on age—but also to continue to prioritize employee health—you can offer telework as an option, not a requirement, for all employees. This may incentivize those high-risk employees to continue to work from home, without specifically singling out those employees as beneficiaries of the policy.
7. If telework is not an option, accommodate in other ways.
Some jobs may not allow for telework, like working as a cashier or retail associate. In these situations, it’s best to try to accommodate the employees’ needs. This could mean furnishing them with additional personal-protective equipment, relocating their workspace to a low-traffic area, or altering work hours to limit contact.
8. Be aware of employees who are eligible for paid leave.
The Emergency Paid Sick Leave Act, under the Families First Coronavirus Act, may provide employees with paid sick leave options if the employee is, for example, experiencing symptoms and being tested for COVID-19.
9. Certain cities and states have protections that cover a larger group from age-based discrimination.
The ADEA protects all workers over 40 from age-based discrimination, but some cities and states have laws that extend to protect all adults. Of course, this widens the pool of people who could potentially file an age discrimination lawsuit. Be sure review local and state laws to ascertain if any of these statutes apply to you.
10. Coordinate with local health authorities.
As every locality and region in the U.S. faces unique challenges, coordinating with local health authorities can ensure that you best meet the needs of your employees based on the particular circumstances of your community.
There are many moving parts to organize when reopening your business. Despite benevolent intentions to protect older employees, employers must be sure to adhere to the EEOC’s guidance to avoid an age discrimination claim. This ranges from creating age-neutral policies to adapting to local and state laws.
Unique challenges need unique solutions. In these stressful and unprecedented times, we know that the health and safety of your employees is a top priority. That’s why the attorneys at Jones Obenchain, LLP are here for your legal needs.