Returning to work after stay-at-home orders are lifted raises a host of issues for employers. For one specific group of employees, businesses may have thought the issue was clear: employees in at-risk categories should remain away from the workplace and, instead, work remotely. However, a recent update from the Equal Employment Opportunity Commission on COVID-19 issues indicates this is not the case, at least insofar as the EEOC is concerned.

Many stay-at-home orders identified persons age 65 and older as an at-risk group of individuals who should stay at home except for essential errands, such as for medication, groceries, doctor visits, and gasoline.   The Executive Order from Oklahoma Governor Kevin Stitt said exactly that.  See Executive Department Fourth Amended Executive Order 2020-07 (3/24/20).  The Centers for Disease Control identifies people 65 years and older as being “at high-risk for severe illness from COVID-19,” reinforcing the idea that this older demographic needs to remain in isolation.

When crises and employment laws collide

Employers could rightly believe, based on the above governmental authorities, that employees age 65 and older should not return to the workplace because they are in an at-risk group for the COVID-19 virus or complications from the virus.  However, the Age Discrimination in Employment Act prohibits employment discrimination against individuals age 40 and older.  The EEOC’s recent guidance stated that the ADEA would prohibit an employer from “involuntarily excluding” an employee from the workplace based on the employee being 65 or older.  The EEOC reached this conclusion even if an employer “acted for benevolent reasons,” such as to protect an employee in an at-risk group from the higher risk of severe illness due to COVID-19.

The EEOC’s guidance is made complicated by guidance from the CDC identifying at-risk individuals to include those over 65.  The EEOC’s guidance exposes an employer to potential claims of age discrimination from this demographic if the employer prohibits such an employee from returning to work, while at the same time exposing that employer to safety-related claims from the same group if the employer requires such employees to return to the workplace.

The guidance from the EEOC seems to recognize this quandary for employers.  It also states that employers “are free to provide flexibility to workers age 65 and older.”  The EEOC acknowledges, though, that workers in this age category do not have any right to a reasonable accommodation due to their age for the COVID-19 virus.  Indeed, the ADEA is not a reasonable accommodation statute like the Americans with Disabilities Act.

The EEOC also referenced the ADA to point out that an employee in the 65 and older age group may have a medical condition that qualifies as a “disability,” thus entitling him or her to protection under the ADA and a reasonable accommodation.  An employer may have to engage in the interactive accommodation process with an employee age 65 or older in addressing a potential return to the workplace.

Best practices for employers

Various new laws and guidance from enforcement agencies encourage employers to be flexible when dealing with employee-related issues caused by the COVID pandemic. While the new EEOC guidance does not require a flexible approach with this particular employee demographic, employers are encouraged to take an individualized approach when navigating the effects of this pandemic on employees.