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42 ¦ OCTOBER 26, 2020 EXPERT OPINIONS

Beware of ‘Benevolent’ Reasons To Treat
Older Workers Differently Amid COVID-19

By Annette A. Idalski and Kyle D. Winnick

The idea behind the ADEA is that employers cannot make assumptions about employees based on their

Aadvanced age, such as being less productive or less “innovative” due to age. (Photo: Shutterstock)
s employers bring back their workforce to The ADEA makes it unlawful for a covered
office environments, they would be wise employer to subject a covered employee (i.e., an
to adhere to an axiom in employment employee 40 years or older) to an adverse employ-
law: Altruism often puts employers at risk for le- ment action because of age, at least in the absence
gal liability. The Centers for Disease Control and of a convincing business justification (called a
Prevention, the nation’s preeminent authority on bona fide occupational qualification). The idea
public health, has determined that certain cat- behind the ADEA is that employers cannot make
egories of persons, including older persons, are at assumptions about employees based on their ad-
increased risk for severe illness from COVID-19. vanced age, such as being less productive or less
More specifically, the CDC has determined that the “innovative” due to age. This has implications for
older you are, the greater the COVID-19 risk is. But how employers bring back their workforce.
before well-meaning employers act to safeguard The Equal Employment Opportunity Com-
this demographic, they should understand their mission—the agency that administers federal
legal obligations under the Age Discrimination in workplace laws such as the ADEA—has issued
Employment Act and its state law equivalents. recent guidance opining that, if an employer pro-

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