Understanding and responding to the business and legal impacts of COVID-19

EEOC Makes Clear COVID Concerns No Excuse for Age Bias

June 12, 2020, Law360, by Vin Gurrieri

Although employers prepping to reopen as the COVID-19 pandemic continues may want to give particularly vulnerable workers special treatment, newly released guidance from the U.S. Equal Employment Opportunity Commission signals that even well-intentioned moves will likely violate age bias law if they single out older employees.

The guidance issued Thursday by the EEOC says that employers are barred from “involuntarily excluding” people over 65 who want to go back to work under the Age Discrimination in Employment Act, a law designed to protect workers over 40 from job-related age bias.

But even before the EEOC’s guidance, the issue of age bias toward returning employees was one that attorneys say could trip up employers as they formulate plans to reopen businesses and reintegrate their workforce that may include special precautions for people over 65. The Centers for Disease Control and Prevention has identified that age group as being at high risk of becoming severely sick if they are infected with the novel coronavirus.

“It’s important for employers to be aware potentially of the vulnerability of that population, but not to specifically make decisions just based on somebody’s age,” said Kristen Gallagher, a partner at McDonald Carano LLP. “I think a lot of people are being really mindful that, even though things are opening up, the virus hasn’t all of a sudden gone away and [you] still need to be protective of those particular groups.”  To read the entire article click here.


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