There is still little we know about COVID-19, but what we do know is that those who are 65 years of age or older are at a higher risk of developing more severe illnesses as a result of COVID-19. The Center for Disease Control (“CDC”) has confirmed that eight out of ten COVID-19 related deaths have consisted of people who were 65 or older. Additionally, on March 15, 2020, California Governor, Gavin Newsom, issued an Executive Order asking Californians over 65 to isolate themselves at home.
Today, more than 20 percent of adults over 65 are either working or looking for work, compared to 10 percent in 1985. Thus, the recent state and federal warnings raise questions for nearly a quarter of those over 65. These questions include: Will my employer send me home because I am over 65? Will I lose my job because of my age and susceptibility to serious illness? Will potential employers ignore my resume because I’m higher risk? These questions boil down to one primary inquiry: Can my employer treat me differently because I am over 65?
In general, an employer cannot treat you differently simply because you are over 65 years old. The Federal Age Discrimination in Employment Act (“ADEA”) and the California Fair Employment and Housing Act (“FEHA”) prohibit discrimination against people who are 40 or older, unless the employer can establish the age limitation is based on a bona fide occupational qualification. These Federal and State laws forbid an employer from refusing to hire, fire, or discriminate against a person regarding the terms, conditions, or privileges of that person’s employment.
On the other hand, there is a myriad of objective evidence showing that folks over 65 are more likely to have serious health complications from COVID-19. If an employer allows an employee over 65 to continue working, and that employee contracts COVID-19, the employer may find itself on the wrong side of a health and safety violation, or worse, a wrongful death lawsuit. Some employers find balance on this legal tightrope with a signed agreement – where the 65+ year-old understands the risks and chooses to continue working. Other employers may simply send the at-risk employee home and face potential exposure to an age discrimination lawsuit.
But even if there is age discrimination on its face, the employer’s apparent motivation for keeping the at-risk employee home is for the health and well-being of that employee, not for a discriminatory purpose. So long as the employer can show a legitimate, nondiscriminatory reason for removing the employee, the employer can dispel the presumption of discrimination. Furthermore, a blanket policy prohibiting at-risk individuals from working could be legal if an employer can show that its bona fide occupational qualification was for public safety, and there is no acceptable less discriminatory alternative. Indeed, the federal and state guidelines, as well as a County Order proving a “strong recommendation” to people over 65 to stay home, would serve as compelling evidence for the employers’ bona fide occupational qualification for placing individuals over 65 on a leave of absence. When the COVID-19 pandemic ends, the bona fide occupational qualification exception would not apply and a blanket policy would likely be unlawful.
 See Government Code §12940; 29 U.S.C. §623.
 In the context of disability discrimination, the employer may refuse to hire or may discharge the employee because the employee’s continued employment would by a “direct threat” by endangering the employee’s own health or safety. 29 C.F.R. §1630.2(r).
 See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, (2000).
 29 C.F.R. §1625.6(b).
 See Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 418-419 (1985) (Defendant Western Airline could rely on the FAA requirement that commercial airline pilots stop flying at age 60 as evidence supporting its bona fide occupational qualification defense in an age discrimination suit).