You read the Sector Rules for reopening offices in Connecticut.
If you read page 5, you’d come across one of the guiding principles for reopening:
As we start opening select businesses…we will open at our strictest controls. This will include…Those in high-risk groups (comorbidities) and over the age of 65 should continue to stay safe and stay home.
So, as you bring employees back to work, you can just tell those employees over 65 years old not to report, right?
Well, no. It’s never quite that simple.
Connecticut and the federal government still have age discrimination laws. Those laws have not been waived during this pandemic. There is no executive order relieving employers of their obligation not to discriminate against workers because of their age.
So, deciding to bring back only those employees under age 65 is not a viable option for businesses, notwithstanding the sector rules. You still can’t discriminate on the basis of age.
But how else might we come to this conclusion?
In part, take a look at the language itself in the rules. Note that rules say: Those over the age of 65 should continue…to stay home.
“Should” is not the same as “must”. At least as this helpful article shows. The languge is suggestive but it is not mandatory. In other words, if employees over 65 want to continue to work, they can although the government is certainly suggesting they still stay home.
The language also is a bit vague – is the government talking to employers to say they should be asking employees over 65 to stay home? Or is it talking to employees to make the decision for themselves?
Regardless, the safest path here is for employers to not make any assumptions for employees based on their age.
What some employers are doing is asking all returning employees if they have any concerns about returning to work. In such a fashion, the question is designed to get all sorts of answers. Someone might have a concern about the commute. Or a sick relative at home. Or even the state’s guidelines.
When that happens, the employer should talk with the employee. Many concerns can be addressed but do that through discussions, not assumptions.
But above all else, don’t exclude employees over 65 from the workplace on the Rules alone.