“You’re as young as you feel” is one of the most common clichés about getting older. Unfortunately, the novel coronavirus does not care about how old you feel. Older individuals have borne the brunt of COVID-19’s wrath.
Part of the reason risk increases with age is because, as people age, they are more likely to develop health problems, according to the federal Centers for Disease Control and Prevention.
Unfortunately, even if an employee’s age puts them at a higher risk of severe illness from COVID-19, an older employee is not entitled to a reasonable accommodation at their place of employment. This is significant when you consider that employees who are older make up a notable number of the U.S. workforce. A recent AARP study found that 19.3 percent of the U.S. workforce is 65 or older.
The Age Discrimination in Employment Act (ADEA) does not have a reasonable accommodation requirement, unlike the Americans with Disabilities Act (ADA). Under the ADA, a person who has an increased risk of developing a serious illness from COVID-19 due to an underlying medical condition might be entitled to a reasonable accommodation.
Gov. Ned Lamont’s phase one guidelines to reopen Connecticut’s businesses on May 20 provided that those in high-risk groups and over the age of 65 should continue to stay safe and stay home.
However, stating that employees “should” stay home is not the same as telling employers they must provide alternative work arrangements to enable those 65 and older to work from home. And even if an employer lets older employees work from home, according to a study from the Economic Policy Institute, only 25 percent of those over 65 are able to work remotely.
According to the Equal Employment Opportunity Commission, which enforces the ADEA, employers cannot involuntarily exclude workers over 65 from the workplace even if the employer “acted for benevolent reasons such as protecting the employee” from becoming severely ill.
Employers also may not force older workers to take safety precautions it does not require of its younger workers. For example, when the NBA announced it would be restarting its basketball season on July 31, Commissioner Adam Silver said that certain coaches “who are obviously older people” can’t coach from the bench. After two of these coaches, age 65 and 68, responded that they should not be singled out, the NBA walked back these statements, saying they would focus on the health and safety of all personnel.
Older workers now are more vulnerable to termination because employers may fear they are at higher risk of acquiring COVID-19. They also tend to earn higher salaries. As a result of the COVID-19 economic crisis, many companies are implementing reductions in force, layoffs and furloughs. In past economic downturns, such as the 2008 recession, older workers have been disproportionately targeted because they generally have higher salaries and health insurance costs. Also, the stereotype that older workers lack the technological skills that employers assume younger employees have may lead employers to discard their older workers.
Ideally, employers navigating COVID-19’s challenges will embrace the cliché that “age is just a number.” Employers who choose to consider employees ages should heed the AARP’s reminder that older workers possess a variety of skills: critical thinking, problem solving, leadership, communication and being calm under pressure, particularly valuable in times of upheaval.
According to the AARP, older workers “bring wisdom, experience and patience to the team” and retain institutional knowledge which can be passed on to young workers. For example, if an NFL team needs a touchdown in its final drive to win the Super Bowl, the team might prefer a 42-year old Tom Brady at quarterback instead of the untested 22-year old rookie with great potential.
Gary Phelan is an attorney with Mitchell & Sheahan, P.C. in Stratford, where he practices employment law. He is the co-author of Disability Discrimination in the Workplace and teaches Disability Law at Quinnipiac University School of Law.