Earlier this year, the U.S. Equal Employment Opportunity Commission (EEOC) addressed age discrimination issues related to COVID-19. Based on the U.S. Centers for Disease Control and Prevention’s (CDC) explanation that individuals 65 years of age and older are at a higher risk for having a severe case of COVID-19 if they contract the virus, the EEOC encouraged employers to offer maximum flexibility to individuals in this age group. This flexibility was intended to offer older employees a way to continue to work even if they did not feel safe in the workplace.
However, the EEOC was clear that the Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. Accordingly, the EEOC said the ADEA prohibits an employer from involuntarily excluding an individual from the workplace based on the individual being age 65 or older. This prohibition encompasses situations in which an employer would not allow an employee in this age group to go into the workplace while allowing others more flexibility to go to the workplace. This is true even if the employer is trying to protect the employee and acting for benevolent reasons.
Priority in Vaccinations
Some employers have now asked if they should be concerned if they put employees age 65 or older in the front of the line for any COVID-19 vaccinations. First, it is important to note that states are making specific determinations as to groups that receive priority in receiving vaccinations, and it is clear that following the wave, one of the earlier groups that will be eligible for vaccinations before others, will be those who are of a specific age. Employers that decide to follow state priority determinations to allow for vaccinations of high-risk employees would likely not be at risk of creating any discrimination issues under the ADEA. Employers that mandate vaccinations for only employees in this age group but not younger employees or those without disabilities may face greater risks.
So, while an employer may be safe in encouraging or mandating its older employees to receive the vaccine when it becomes available to them, it may want to consider taking the same stance as the vaccine becomes available to other groups of its employees in order to avoid any ADEA issues.
Regardless of whether an employer addresses vaccinations as they become available to different groups or waits and mandates or encourages all employees to be vaccinated at the same time, employers may want to review or draft a vaccination policy now and be prepared for the issues that may arise.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.