During the COVID-19 Pandemic, Can I Be Treated Differently Because I Am Over 65?

There is still little we know about COVID-19, but what we do know is that those who are 65 years of age or older are at a higher risk of developing more severe illnesses as a result of COVID-19.1 The Center for Disease Control (“CDC”) has confirmed that eight out of ten COVID-19 related deaths have consisted of people who were 65 or older.2 Additionally, on March 15, 2020, California Governor, Gavin Newsom, issued an Executive Order asking Californians over 65 to isolate themselves at home.3

Today, more than 20 percent of adults over 65 are either working or looking for work, compared to 10 percent in 1985.4 Thus, the recent state and federal warnings raise questions for nearly a quarter of those over 65. These questions include: Will my employer send me home because I am over 65? Will I lose my job because of my age and susceptibility to serious illness? Will potential employers ignore my resume because I’m higher risk? These questions boil down to one primary inquiry: Can my employer treat me differently because I am over 65?

In general, an employer cannot treat you differently simply because you are over 65 years old. The Federal Age Discrimination in Employment Act (“ADEA”) and the California Fair Employment and Housing Act (“FEHA”) prohibit discrimination against people who are 40 or older, unless the employer can establish the age limitation is based on a bona fide occupational qualification.5 These Federal and State laws forbid an employer from refusing to hire, fire, or discriminate against a person regarding the terms, conditions, or privileges of that person’s employment.

Recently, the Equal Employment Opportunity Commission (“EEOC”) provided guidance on this very issue.6 The EEOC advises reintegration of workers over 65 even though they are considered high risk. Even if an employer is legitimately concerned for the health and safety of its employee, it cannot exclude someone from the worksite solely because that employee is a certain age. Some of the specific issues addressed by the EEOC include:

  • Employers may not involuntarily exclude an individual from the workplace based on an individual being 65 years or over;
  • Employers may not postpone the start date or withdraw a job offer because the individual is 65 years or over;
  • Employers, however, are “free to provide flexibility to workers 65 and older,” even if this means younger workers ages 40-64 are being treated less favorably based on age in comparison.

In sum, absent any other considerations, an employer may not exclude an employee from the workplace because he or she is 65 or older, even if the employer is acting to protect the employee due to his or her higher risk of illness from COVID-19.

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