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EXPERT OPINIONS OCTOBER 26, 2020 ¦ 43

hibits its workers age 65 and over this would likely not violate the
from reentering the workforce ADEA.
due to higher risk for serious The new EEOC guidance
illness from COVID-19, this Prohibiting workers over also clarified that merely being
would violate the ADEA. This age 65 from reentering at a higher risk for severe ill-
is the case even if the employer the workforce due to ness from COVID-19, such as

is motivated by “benevolent rea- higher risk for serious being older, does not necessar-

sons,” such as the health of the illness could violate age ily trigger the protections of the
older worker(s), and not animus Americans with Disabilities Act.
toward them. discrimination laws. The EEOC confirmed that the

But the EEOC’s guidance ADA only requires employers to
should not be read too broadly. accommodate an employee with
For example, employers can allow its older work- a disability. Of course, nothing in either the ADEA
force to work remotely—it just cannot require or ADA prevents employers from engaging with
them to do so, if it is not requiring its younger its workforce to find flexible solutions to accom-
employees to work remotely. The EEOC also has modate nondisabled workers’ needs during this
clarified that employers may subject employees to time.
temperature checks, mandate that they stay home The upshot of the EEOC’s guidance is that em-
if they show symptoms of COVID-19 (e.g., fever ployers can (and should) follow CDC, state and
or coughing), administer COVID-19 tests, require local health guidance on how to reintegrate their
returning employees to submit a doctor’s note cer- workforces safely. But employers still need to be
tifying their fitness for duty and otherwise follow wary about treating employees differently based
CDC guidance, so long as employers are not treat- on a protected trait, such as age. If in doubt, em-
ing older employees less favorably than younger ployers should retain employment counsel to
employees. ensure that their return-to-work plans are compli-
In fact, under the ADEA, employers may ant with the law.
treat older workers more favorably than younger ¦

workers. (Although this may violate state anti-dis- Annette A. Idalski is the national chair of Cham-
crimination law.) Therefore, if an employer affords berlain Hrdlicka’s Labor & Employment Group in
older workers the option to work remotely but Atlanta. Kyle D. Winnick is an associate in the
does not afford this option to younger workers, practice.

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