“Come out to the coast, we’ll get together, have a few laughs”.
Sounds like a plan for reopening businesses in Connecticut next week, right?
Well, that quote is from Bruce Willis’s character in one of my favorite movies, Die Hard. It might also be in peril if you are the same age as Bruce Willis is now — 65. (Yes, really, he’s 65 years old.)
See, the reopening guidelines in Connecticut have this line: “Those in high-risk groups (comorbidities) and over the age of 65 should continue to stay safe and stay home.”
So, no getting together for John McClane. No “Welcome to the Party, Pal” either.
But what does this guideline mean for employers and the workplace?
Well, first there’s a bit more to the reopening office guidance from the state here. It goes on to state:
While these rules provide a way for offices to reopen in as safe a manner as possible, risks to employees cannot be fully mitigated. Employees who choose or are instructed to return to their offices during this time should be fully aware of potential risks. Individuals over the age of 65 or with other health conditions should not visit offices, but instead continue to stay home and stay safe.
However, the federal and state age discrimination laws still remain the law of the land; and arguably, that means that employers can’t be making decisions based on age. Employers should also not be making decisions for older workers about whether or not they should return to work.
Note the language of the guidelines — “should”. That’s obviously different than “must”. And the requirement speaks mainly to what individuals should do, not employers.
The simplest solution though is for employers is to talk with or ask your employees if they have any concerns about returning to the workplace and whether they will need any accommodations to do so. Employers that can have people work from home should have them continue to do so.
The EEOC did recently issue some guidance on the following question addressing the ADA (but not ADEA) related issues:
G.4. The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19. An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation? (5/7/20)
The answer notes two important points: 1) If an employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action), and 2) That employers in this situation can seek to use the “direct threat” analysis but only in very limited circumstances. This guidance, however, still doesn’t address the age discrimination law.
In fact, in a recent town hall, the EEOC leaders made clear that “employers that, under federal law, they could not target employees over 65 or pregnant employees for furlough or layoff based on their “at risk” status. ”
Thus, Connecticut’s guidance — while useful — is not an excuse for employers to violate age discrimination laws.
(Note too: Employees who are subject to stay at home orders may be eligible for paid leave under the FFCRA, so employers have a lot to think about. There may also be an argument for a Bona Fide Occupational Qualification – but that’s an issue for another day or blog post.)
Now, if only we could go back to travel and following this sage advice also from Die Hard: “You want to know the secret to surviving air travel? After you get where you’re going, take off your shoes and your socks then walk around on the rug bare foot and make fists with your toes.”
For more on reopening, my colleague Sarah Westby and I have posted a full analysis at our firm’s website here.
We’ll be hosting a complimentary webinar tomorrow that will examine all the issues associated with reopening parts of the state back up. Given the unprecedented demand, I strongly encourage you to sign up early for the webinar and also to log in 10-15 minutes early to secure your spot to this. You can register here and this is CLE eligible as well.