Be mindful while re-opening your business.

As companies begin to re-open, many leaders are rightfully concerned about the health and safety of their colleagues. You might instinctively want to create different rules or timelines for workers who are over the age of 65. This might even feel like the right thing to do. Yes, you should take steps to protect everyone, and yes, you should be mindful of different risk factors, but the EEOC has warned against excluding individuals from a return-to-work plan based on their age. In other words, don’t bar your older colleagues from coming to work simply because they are older. That might get you in legal hot water for violating the ADEA (otherwise known as the Age Discrimination in Employment Act). Instead of enacting bright line rules, be flexible and accommodating. While there may be quirks under state law (and you definitely should check with counsel licensed in the appropriate state), EEOC guidance makes clear that you can provide flexibility to older workers even if it results in younger workers being treated “less favorably” based on age. What does that mean? Well, as an example, you might allow more telecommute options or other accommodations for workers over 65 who have concerns about returning to work during this pandemic. Not only will this keep you safe from federal labor law violations, it also will align you with a modern way of working. We should all come out of this pandemic with forward progress to a better way of working for all and this would be one small step in that direction. Be flexible. Be creative. Evolve and adapt. And always check with your counsel to make sure you are on sound legal ground.