The coronavirus pandemic has hit older workers in uniquely devastating ways.
Not only are older people at higher risk for developing serious complications from COVID-19, they're also over-represented in positions such as janitors and home health aides, which put them at greater risk for catching the virus. Many also hold jobs in sectors like retail and hospitality that have been decimated by the downturn and could well endure more cuts.
Compounding that is the still-flourishing ageism trend that makes it difficult for older workers to find employment even in the best of times. And older people must usually accept a lower salary if they find a job after being laid off, research shows. Still, their vast numbers and their need for pre-retirement income make them the fastest-growing segment of the workforce and a contingent that many employers rely on.
"Health risks for older workers are going to raise their unemployment rates dramatically until there is a cure or vaccine," says Richard Johnson, senior fellow and director of the program on retirement policy at the Urban Institute, a Washington, D.C.-based think tank.
In April and May, workers age 65 and older had higher unemployment rates than those between the ages of 25 and 54—a scenario that Johnson says is unique to this recession. Older workers' seniority had protected them in earlier downturns, leading to lower unemployment rates than their younger counterparts. Johnson believes the change is a sign of how the virus is affecting older workers' employment amid this recession. "I think this is going to be a trend," he says.
Lawsuits to Follow
One nearly certain consequence of the current recession will be a rash of ageism-related lawsuits over layoffs and furloughs, according to attorneys representing both corporations and workers. One case has already attracted attention in legal circles. Mark Kanyuk, 62, sued Shearman & Sterling, saying the law firm needed to cut costs due to COVID-19 and started by laying off one of its oldest employees. Kanyuk alleges his co-workers joked about his age and that the firm fabricated a story about him accepting kickbacks to justify his dismissal. The firm denied the allegations and said he was terminated for cause.
Mark S. Goldstein, a partner in the labor and employment group at Reed Smith, says his corporate clients have already started to receive age-discrimination complaints. He expects the number of claims will increase as businesses continue to reopen, because people will have a better understanding of what has happened in their workplaces and the ability to consult a lawyer.
Attorneys say the coronavirus may also give rise to "paternalistic lawsuits" that stem from companies violating the law by taking well-meaning actions to protect older workers from contracting the virus. For example, a company may believe that it's helping a 60-year-old by furloughing that worker to keep him or her from interacting with others who could potentially have the virus. But that is against the law.
"Some companies will try to play doctor and they're coming from a benevolent place, but the law doesn't allow businesses to play doctor," Goldstein says.
Confusing, Conflicting Guidance
The U.S. Centers for Disease Control and Prevention (CDC) and the Equal Employment Opportunity Commission (EEOC) have issued guidance on how to bring employees back to the workplace safely. At the same time, existing federal and state labor laws must be followed.
It can all be quite confusing. The CDC says that both older people and those of any age with underlying health conditions are at greater risk for developing severe cases of COVID-19. Under the Americans with Disabilities Act, employers may have to provide accommodations to those with disabilities, but not those over age 65 who do not have disabilities. Workers age 40 and older are protected from bias by the Age Discrimination in Employment Act; however, that law doesn't require employers to make accommodations for safety concerns.
Nonetheless, the EEOC said in June that businesses are "free to provide flexibility" to workers over 65. That's allowed even if those ages 40 to 65 don't receive accommodations.
Still, lawyers say that older employees can't refuse to return to work because they're afraid of catching the virus. However, the Texas Workforce Commission opted amid the pandemic to allow those 65 and older to decline work for safety reasons while continuing to collect unemployment.
"This is uncharted territory for employers," says Tom Spiggle, owner of his eponymous, Arlington, Va.-based law firm that represents employees. "There are not a lot of bright-line rules."
Jeff Nowak, an attorney with Littler in Chicago, says his corporate clients have been frustrated by the inconsistent guidance. He has advised them to not proactively raise the issue of an employee's ability to work to avoid legal trouble.
"Go with the assumption they can return to work," Nowak says, but "engage in conversations with employees if they raise the need for help."
Of course, it's much easier to reach an accommodation with an employee who can safely work from home than it is with one whose job is driving a bus or cleaning a building.
Troubling Landscape
Nearly three-fourths of workers age 65 and older—more than 5 million people—are unable to telecommute, according to research by the Economic Policy Institute, a Washington, D.C.-based think tank.
Meanwhile, a study from The New School of Social Research determined that close to one-third of workers age 50 or older—18.4 million people—face serious risk of illness or unemployment because of their jobs. Such workers hold 37 percent of personal care/home health aide positions and 36 percent of transportation and moving posts, jobs that require close contact with others.
Sectors such as food service and maintenance/installation have been badly battered by the recession, leading to widespread layoffs and furloughs. People over age 50 account for 20 percent of the former jobs and 34 percent of the latter.
"What we're seeing is a real crisis for older workers," says Monique Morrissey, an economist for the Economic Policy Institute (EPI) in Washington, D.C. She says she'd like to see more states adopt Texas' stance of allowing older people to refuse work during the pandemic without fear of losing their unemployment benefits.
However, advocates are concerned that carving out considerations for older workers may feed negative stereotypes.
"As a general rule, you don't want to make age a factor even though it is a factor in certain jobs," Morrissey says. "But this is an unusual situation."
Employers are not supposed to consider age when terminating employees. However, some plaintiffs' attorneys fear that companies may disproportionately dismiss older, higher-paid workers amid mass layoffs triggered by the pandemic.
"Age discrimination can be very difficult to spot," says Spiggle, who adds that his law firm's website is adding information to help educate potential clients about ageism during the pandemic. Another worry is that the shift to working from home could hurt older employers due to a lingering perception that more seasoned workers aren't as tech-savvy as their younger counterparts.
"People think that it's the 60-year-old and not the 25-year-old that may have a bit of a problem," Spiggle says.
Ominous History
What's especially troubling for older workers' advocates is knowing what lies ahead after the layoffs.
Only 50 percent of Baby Boomers say they have recovered from the Great Recession, according to the 20th Annual Transamerica Retirement Survey of Workers.
"When we look at the Boomers who are still working, many haven't set aside enough for a financially secure retirement," says Catherine Collinson, chief executive officer and president of the Transamerica Center for Retirement Studies, a nonprofit based in San Francisco.
An EPI study of unemployed workers in the Great Recession found that only one-third of adults age 62 and older who lost jobs were re-employed within 12 months and only two-fifths were re-employed within 18 months. On average, an older worker's chance of re-employment each month was about half that of the average worker age 25 to 34.
"Why does it take longer for older workers to find jobs? I don't know," says Susan Weinstock, vice president of financial resilience programming for AARP. "We hear from employers that they greatly value older workers and the soft skills they have."
Theresa Agovino is the workplace editor for SHRM.
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"Most managers are not actively trying to weed older workers out of the workforce," says Dana Connell, an attorney with Littler in Chicago. "But they sometimes factor in age without really thinking about it or make decisions in a way that makes it appear that age is a factor, even when it's not."
