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EEOC Issues Guidance on Age Discrimination and COVID-19

Tuesday, March 29, 2022
Natalie Terchek


  • Section H of COVID-19 FAQs: Section H of the EEOC’s guidance on COVID-19 and fair employment laws includes two FAQs about discrimination protections for individuals aged 40 and older under the ADEA.
  • Guidance on COVID-19 and the ADEA : Among other things, the FAQs in section H of the EEOC’s FAQs clarify the following:
    • Employers may not exclude older employees from the workplace based on age-related risk of severe illness from COVID-19.
    • While the ADEA does not mandate accommodations, older individuals may qualify for disability-based reasonable accommodations  under the ADA.

The Equal Employment Opportunity Commission (EEOC) released FAQ guidance about how employers should observe workplace safety guidelines during the COVID-19 pandemic while complying with the Americans with Disabilities Act (ADA) and other federal fair employment laws. The FAQs were originally released on March 17, 2020, and were most recently updated on March 14, 2022.

In section H of that guidance, the EEOC clarifies how employers may comply with the Age Discrimination in Employment Act (ADEA). One of these FAQs was added to the original guidance on June 11, 2020, and updated on Dec. 20, 2021. The other was added on Sept. 8, 2020.

This Compliance Bulletin provides the two FAQs in section H of the EEOC’s full COVID-19 guidance, as updated on March 14, 2022.

Section H of EEOC’s Full COVID-19 Guidance: Age

H.1. (Added June 11, 2020; Updated Dec. 20, 2021): The CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus and therefore has encouraged employers to offer maximum flexibilities to this group. Do employees age 65 and over have protections under the federal employment discrimination laws?

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on being 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. For more information on postponing a start date or withdrawing a job offer due to older age, see C.5.

H.2. (Added Sept. 8, 2020):If an employer is choosing to offer flexibilities to other workers, may older comparable workers be treated less favorably based on age? 

No. If an employer is allowing other comparable workers to telework, it should make sure it is not treating older workers less favorably based on their age.

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