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Is Age A Disability During COVID pandemic?

Discussion in 'Medical Leave & Disability' started by Anon-e-Mouse, Jun 17, 2020.

  1. Anon-e-Mouse

    Anon-e-Mouse Law Topic Starter Member

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    With workplaces bringing employees back to work, what if an employee is over 65 and the CDC Guidelines say people over 65 are high risk? Can employees over 65 request ADA accommodation to continue working from home because they're considered high risk? How do they do that? Do they need to get medical documentation to prove that they're over 65, which HR probably already knows anyway? Can the employer tell them either they need to show up in person or retire? What if they can't afford to retire and are still completely capable of doing their job, but don't want to risk catching COVID-19 because they're at higher risk of dying from it? Do they have to risk their life to keep their job because age isn't a disability?
  2. adjusterjack

    adjusterjack Super Moderator

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    They can ask.

    In writing. To the boss.

    They will need some sort of documentation as to why their condition requires an accommodation.

    Yes. As a matter of fact, I was just reading that the age discrimination laws might not apply if the worker is over 65.

    Then they are between a rock and a hard place.

    Now you're entering troll territory because that's a compound question that has no answer. It's like "Have you stopped beating your wife?" A yes answer means you've beaten your wife in the past. A no answer means you haven't stopped beating your wife.

    No more troll questions, OK?
    justblue likes this.
  3. army judge

    army judge Super Moderator

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    A person can request almost anything.

    A person can request an accommodation.

    All requests aren't granted, so prepare for disappointment and regret.

    Nevertheless, you do possess the ability to ask.

    It might be a good idea to ask your Manager, Supervisor, HR Rep, Benefits Rep, or Disability rep (if you have one) about what is required to file an ADA accommodation.

    A smart employer (or it's agents) would never use such language.

    Using THAT type of language could cause BIG trouble for an entity.

    As the laws don't allow what you've posited, the person would be best advised to resolve the dilemma to the best of her/his abilities.

    People must endeavor to make wise choices.

    However, slavery has been outlawed for over 150 years.

    No one is required by law to hold a job.

    No job is guaranteed for any period of time.

    Choose wisely, mate.
  4. Tax Counsel

    Tax Counsel Well-Known Member

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    Being over a certain age is not a disability. Nor is the fact that older people are more likely to be at risk of infection by disease a disability. And it's not just covid-19, by the way; older folks are more vulnerable to many conditions. So this same problem does come up in other situations, too, not just the pandemic.

    They can tell the employee to show up or the employee will be out of a job. Even if age was a disability, under the ADA the employee still has to be able to do the job, with or without an accommodation. If there is no accommodation the employer could provide without an undue hardship that would enable the employee to do the job the employer can let that employee go. Having a disability is not protection against being fired when you cannot do the job. The goal of the ADA is to provide help to employees so that they can do the job. If that's not possible then the employer doesn't have keep them on payroll. You might have had a shot at continuing to work from home if that were a necessary accommodation for a disability. But age is not itself a disability.

    They have to make a decision about the risk they are willing to take. Many jobs require making a risk vs rewards analysis. Cops, military, rescue workers, fire fighters, medical workers, and many more occupations face significantly increased risks that they may die or be injured on the job. They have to decide whether the reward of the job is worth the risk. This is really no different than that. You have to make the decision of whether to continue working given the potential risks of exposure to covid-19.

    The discussion above focuses on the ADA and federal law. If your state has a law that would allow you a right to continue to work at home during covid-19 related shut downs, that might change things.

    You may want to ask an employment law attorney in your state about what state law protections might apply.
    hrforme likes this.

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