Despite all of the uncertainty surrounding COVID-19, it has been apparent since the early days that the virus is dangerous for older adults. As our understanding of the pandemic changes and evolves, this finding does not appear to have wavered, and the CDC currently maintains that individuals 65 years and older “are at higher risk.” As parts of America continue to stay home and others return to work, what does this mean for older adults in the workplace?
Federal Protections Under the ADEA
At the federal level, the Age Discrimination in Employment Act (“ADEA”) protects Americans age 40 or older from discrimination based on their ages. What that means in the midst of a pandemic disproportionately affecting older people is still unfolding in the legal realm, though COVID-19 age-discrimination lawsuits have already been filed.
Employers run into liability for discrimination when they treat employees differently based on a protected characteristic without their permission. Accordingly, if you ask your employer for dispensation to work from home because you fear that the risk of contracting the coronavirus at your age is too great, your employer will not run afoul of the ADEA for granting this request. But what happens when your employer grants you a “dispensation” without your request beforehand? And what happens if your employer denies your request?
Employer Dos and Don’ts
As to the first issue: your employer is unequivocally not allowed to treat you any differently just because of your age without your having requested the special treatment. It is not irrational for an employer to consider an employee’s age during these uncertain times, but an employer must leave such decisions up to the employee. Put another way, even if your employer is concerned for your health or thinks that you will be more likely incapacitated (or worse) in the event of infection, they are not allowed to treat you differently than other workers based on your age without your permission. Because things like mandating that an employee stay home based on her age constitute disparate treatment and can translate into negative outcomes like missed opportunities or lower productivity, you can make out a claim of age discrimination even if your employer has (or claims to have) your best interests at heart.
Accommodations Are Discretionary
But what happens in the event that you make a request for an accommodation like being able to work from home and your employer rejects it? Unfortunately, as the EEOC has made clear, the ADEA, unlike the Americans with Disabilities Act, does not allow you to ask for an accommodation based on your age, and your employer can deny your request without risking legal liability. Nonetheless, if you believe that others are being granted accommodations whereas your age-based accommodations are being denied, your employer may be liable for age discrimination.
This situation is constantly changing for all of us, and as the foregoing demonstrates, the analysis is fact-specific and complex. If you are concerned that you have been the victim of age discrimination in the workplace, please contact our firm and we would be happy to evaluate your situation!
 Provided they work for an employer employing 20 or more employees.
 Note: if your request bears on disability as well as age, you may be entitled to a reasonable accommodation such as staying home.