Businesses are reopening. If you're older or sick, what happens to your job?

Laurence Darmiento, Los Angeles Times on

Published in Business News

Indeed, the AARP is fearful that the gains older workers have made in the workplace could be lost in the current environment, as employers seek to minimize the risks they and employees face from a disease that has hit the elderly particularly hard. It's recommending continuing to allow them to telecommute if possible.

"Employers need to be super thoughtful as they bring back their workers," said Susan Weinstock, vice president of financial resilience programming at the advocacy group. "But we certainly don't want this to be a way to institutionalize age discrimination. Pre-pandemic, things were going really well for older workers."

While the federal age discrimination law doesn't require employers to offer reasonable accommodations for older workers, it does require that employers offer equal opportunities for workers who are 40 or older. Practically speaking, that would bar employers from establishing a blanket policy keeping workers older than a certain age from returning to the workplace.

"There is nothing magical about 59 to 60, and you could have workers who are in tip-top shape at 59 or 60 and workers who are 25, 35, 45 who are not," Musell said. "I think this is going to be very touchy."

And that's especially so in an era when baby boomers move toward retirement, yet remain in the workplace in large numbers.

Ashley Martin, assistant professor of organizational behavior at the Stanford Graduate School of Business, said there is age prejudice from younger workers who think older ones are blocking their ability to move up or are sucking up financial resources through healthcare, retirement and other benefits.

"There is already a sense that they are sacrificing a lot of what they should have because older people are still around and still working and living longer than ever," she said. "I am concerned about it."

She noted research that showed mothers who took flex time experienced bias and recommended that employers frame policies that would benefit older workers as ones available to all employees. "What they are doing for older workers should be either framed as a holistic policy or implemented at a holistic level,' she said.

Amid the unanswered questions, employees and employers alike have been looking for some clarity.

In Washington, a top priority of the U.S. Chamber of Commerce is getting employers a so-called "legal safe harbor" from lawsuits by employees or customers who allege they acquired COVID from a place of business. The proposal is supported by some leading Republicans but opposed by Democrats and labor.

The chamber's National Return to Work Plan also seeks legal protections arising from alleged violations of the ADA and the age discrimination act -- such as from workers who say they were delayed in returning to work, returned to work too soon, or not provided reasonable accommodations.


Neil Bradley, chief policy officer of the U.S. chamber, said that while talks have focused on broad "exposure liability," the issue of discrimination claims has not been left out. "We have absolutely had discussions with lawmakers around making sure that following public health guidance doesn't trip you somehow," he said.

The chamber's proposals are based on the idea that if employers follow established public health guidance, they should not be stuck with the cost if workers or customers get sick, but employee advocates say that the law already provides enough legal protections for employers. Musell calls the Chamber proposal involved the ADA and age discrimination act a "nonstarter."

Meanwhile, the AFL-CIO has challenged the notion that there are adequate national standards even as the Centers for Disease Control, the EEOC and various state and local agencies have issued a tumult of workplace regulations and guidance. It filed an emergency petition demanding that OSHA issue legally binding COVID workplace standards.

In response, a department spokesperson called the lawsuit "counterproductive: and said the agency is "working around the clock" to protect American workers.

In the meantime, businesses are already opening across the nation -- a process that will provide some clarity in itself, said Stella, of Cozen O'Connor.

"No one really knows how this is going to play out until the economy really starts to open up and everybody returns back to work," he said.

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