Labor & Employment partner Greg Abrams was quoted by Law360 in the article "EEOC Makes Clear COVID Concerns No Excuse For Age Bias."
Law360 reports that although employers prepping to reopen as the COVID-19 pandemic continues may want to give particularly vulnerable workers special treatment, newly released guidance from the U.S. Equal Employment Opportunity Commission (EEOC) signals that even well-intentioned moves will likely violate age bias law if they single out older employees. The legal industry publication turned to Abrams for insight into how employers should consider the guidance when outlining reopening plans.
The guidance issued on June 11, 2020 by the EEOC says that employers are barred from "involuntarily excluding" people over 65 who want to go back to work under the Age Discrimination in Employment Act (ADEA), a law designed to protect workers over 40 from job-related age bias.
According to Law360, in taking the position that workers can't be forced to stay home because of their age, the EEOC noted that its stance applies even when an employer does so "for benevolent reasons," like protecting workers because they are part of a high-risk population.
"If someone is older but otherwise doesn't have any sort of disability and cannot meet the criteria for the ADA or any state or local equivalent, there is no obligation to reasonably accommodate," Abrams noted. "That said, I can understand [if] employers would want to do that."
But more broadly, Abrams said it's important for businesses to set "clear policies regarding returning to work and what kind of precautions the employer will be taking" that include a process for employees to express concerns about their own situations, adding that it's "risky if employers are singling out certain types of workers for reasons that are not purely job-based."