The Equal Employment Opportunity Commission (“EEOC”) enforces workplace anti-discrimination laws, including, but not limited enforcing a prohibition against discrimination based on age, over 40. Since the development of the COVID-19 crises, the EEOC has created subsequent guidance documents to ensure employers maintain compliance with their legal obligations.
The Center for Disease Control (“CDC”) has stated that individuals age 65 and over are at a higher risk for a severe case of COVID-19. As such, some employers may believe, “benevolent[ly],” that they may require an older employee to work from home against the employee’s wishes. This type of involuntary exclusion is express prohibited under the Age Discrimination in Employment Act (ADEA). At the other end of the spectrum, unlike the Americans with Disabilities Act, the ADEA does not require an employer to provide a “reasonable accommodation” for older works due to age.
However, employers can invite employees to request flexibile work arrangements. Employers may provide flexibility to workers 65 and older, even if this results in workers at 40-64 being treated less favorably. If an employee who is 65 and older has a medical condition which brings them under the protection of the ADA, then they may request a reasonable accommodation for their disability.