What do you do if you have an over 65 employee who is healthy right now but does have a chronic condition and they cannot work from home?
Employees are only eligible to take leave under the Emergency Paid Sick Leave Act if they are unable to work or telework because of a qualifying event. If the employee is unable to work or telework because of advice from a health care provider to self-quarantine due to concerns related to COVID-19, he or she may be entitled to paid sick leave under the Act. In the event that an employee is unable to work or telework due to a medical concern that does not constitute a qualifying event under the Act, that employee may be eligible for leave under other laws, such as the Americans with Disabilities Act, the Family and Medical Leave Act, or state or local paid sick leave laws.
In returning employees to the workplace, employers should consider the potential impact of the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act. The ADEA prohibits employment discrimination against individuals age 40 and older.The EEOC has provided guidelines that, under the ADEA, an employer may not involuntarily exclude an individual from the workplace solely based on being age 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.
Unlike the ADA, the ADEA does not include a right to reasonable accommodation for an older worker due to age. However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.
At the same time, employers should consider potential accommodations for an employee who is in the vulnerable population in returning an employee to the workplace. Finally, employers may wish to consider whether an employee with a particular condition presents a direct threat to the health or safety of the employee or other employees.
The intersection of the ADA and the ADEA in the COVID-19 era is particularly complex, and employers should also consider state and local laws. In particular situations, employers should consult with counsel.
Last updated June 22
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