Employers may not bar vulnerable workers in an effort to protect them

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On June 11, 2020, the Equal Employment Opportunity Commission (EEOC) issued new guidance for employers reopening workplaces during the ongoing COVID-19 Pandemic. 

Most prominent, the EEOC opined that employers may not "involuntarily" exclude employees over the age of 65, even if done with the "benevolent" aim to protect those in an age group who are at an increased risk of contracting the virus.  Doing so would run afoul of the Age Discrimination in Employment Act, which precludes adverse actions solely because of age.  However, employers are "free to provide flexibility to workers age 65 and over … even if it results in younger workers ages 40-64 being treated less favorably… ."  This conforms with the recommendations of the CDC's May 20, 2020 guidance, which addressed accommodating employees who due to age or medical condition are at a higher risk.

Similarly, the EEOC noted that employers are permitted, under both the Americans with Disabilities Act (ADA) and the Rehabilitation Act, to invite all employees to request flexibilities or accommodations, but cautioned against treating employees in different EEO classes differently.

Beyond opining on older employees' presence in the workplace, the guidance addressed other sticky situations employers may face:

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