This year has been full of uncertainty. The coronavirus pandemic has directly impacted the lives of millions.
And when it comes to the workplace, COVID-19 has led to a flood of legal questions and complaints. The majority of these cases involve the potential discrimination of older and disabled workers.
While it’s been hard to predict many things related to COVID-19 throughout 2020, labor and employment lawyers foresee a large influx of federal and state lawsuits in response to the pandemic — a number which will continue over the next six to 12 months.
If you own a small practice and have recently let employees go, particularly those 40 and older or individuals with a medical disability, it’s important that you protect yourself. A wave of discrimination lawsuits is looming. Here’s how to prevent legal ramifications within your practice.
The Age Discrimination in Employment Act of 1967 and COVID-19
Back in 1967, the Age Discrimination in Employment Act was passed, which prevented discrimination against workers age 40 and older. This act was implemented due to ongoing age-related acts of discrimination, which have now worsened for both employees and employers during the worst economic crisis in a century. Not only are businesses trying to stay afloat, but older and disabled employees now face possible permanent unemployment and resulting financial hardship.
Oldest Workers Have Been Hit the Hardest
While looking at data from a typical recession, older workers are less likely to lose their jobs. In most cases, their experience and tenure help secure their positions, but the recession caused by COVID-19 hasn’t been like most cases. As reported by the Economic Policy Institute, the percentage change (based on the number of employed individuals from February 2020 to May 2020) was greatest among those 65+.
The National Bureau of Economic Research also reported that the unemployment rate among Americans age 65 and older rose approximately 2.5 times more in April 2020 than it did at the peak of the Great Recession. Considering there are more than 10 million Americans 65 and older in the workplace, a large population is at risk of life-altering consequences following the pandemic. Many will be pushed out of the workforce and when it comes to the rehiring process, this age group will likely be unlawfully passed over.
Trends in Unemployment Will Likely Lead to a Spike in Lawsuits
Since the pandemic first began, more than 45 million Americans have filed for unemployment. Among the cases being filed, the burning question remains — what are the criteria for who stays and who gets laid off? For example, there are reports of older employees being let go while those who have been with a company for just two years still have a job.
Why is that?
In these cases, those without a job immediately assume their age is to blame.
While the number of lawsuits is anticipated to increase, business groups such as the U.S. Chamber of Commerce aims to protect employers in response to the growing litigation risk. As of September 1, 2020, fewer than ten age or disability discrimination lawsuits related to COVID-19 have been filed in court. However, many more continue to be investigated.
It’s predicted that the current economic crisis will offer employers an opportunity to layoff older workers who do not necessarily perform as well. The issue here is that if there are no “bad performance” records on file, an employer’s defense lawyer will need to prove that age wasn’t the deciding factor.
The globe is currently going through a tough economic time. In that sense, if you have let a higher-paid employee go, and they happen to be older, you will likely have a defensible case. If you decide to let someone go due to high compensation, that is not age discrimination. However, like any termination, you need to have all your ducks in a row ahead of time.
Tip: HR for Health offers performance and task management tools that can help you remain organized in relation to performance and discipline reviews. That way, your practice has proper documentation if issues arise in the future. Read more about all of the features offered by this software here.
When Good Intentions Lead to Legal Risks
Ironically, there are cases being reported that showcase the potential legal consequences of good intentions. For example, if you are concerned for the health of older employees, particularly those who are able to work remotely (i.e. administrative positions), you may suggest that they work from home rather than return to your practice. Although this will be in their best interest, reducing their risk of COVID, you may find yourself in hot water.
In June, the EEOC stated that although employers can provide flexibility to older employees, they can not legally exclude employees from the workplace based on age, even for benevolent reasons. You can, however, exclude an older employee if they have a medical condition that requires an accommodation to work remotely, as stated in the Americans with Disabilities Act. In this case, you would go through the interactive process to establish if you are able to provide a reasonable accommodation for the employee (i.e. a modified work schedule or temporary job assignment).
At this time, it’s uncertain how judges and juries will react to these lawsuits. However, one thing is certain — employers who behave poorly and purposely try to run out older employees will likely be an example of. If you have had to let someone go during COVID-19, regardless of their age, it’s best to seek HR and legal advice. Throughout this process, you need to remain compliant.
The termination process can be confusing and in order to stay out of legal trouble, you need to tread lightly. You need to be mindful when letting any team member go, remaining extra vigilant during the current pandemic.
HR for Health communicates your progressive discipline plan in a customized employee handbook based on the values and culture in your practice. Use your handbook to improve relations with team members and avoid legal action. Schedule a call, call (877) 779-4747, or email email@example.com now to learn more.
HR for Health is one of the nation’s leading Human Resources Management Systems (HRMS) used by small to mid-sized practices.