By Linda Goor Nanos, Next Avenue
Older Americans are staying in the work force well beyond the traditional retirement age; 20% of people over 65 are employed. Mature workers bring life and career experience to their jobs and overall have lower turnover rates than younger employees, but by virtue of their advanced age, they may need accommodations and flexibility from their employers.
While no law explicitly mandates accommodations with respect to age, to deny a reasonable request can be a violation of the federal Americans with Disabilities Act (ADA). The law and related regulations do not have a set list of age-related disabilities, they may include pain, loss of strength or stamina, hearing or visual deficiency, or ambulatory difficulties. The ADA defines a disability as an impairment that limits one or more major life activities, a record exists of the impairment or one is regarded as having it.
Laws, Protection and Advocacy
The federal ADA applies to companies employing at least 15 workers. Local laws cannot be more restrictive than the federal standards, but they can be more generous in their protection of employees. Where I live, New York State amended its Human Rights Law in 2020 to eliminate company size as an exception to enforcement, resulting in all employers being equally subject to the human rights statute.
Older individuals are more likely to have medical conditions that require doctor visits, diagnostic exams, treatment and surgical procedures. If medical necessity requires a worker to take time off, the federal Family Medical Leave Act (FMLA) protects them from being replaced for up to 12 weeks, unless the employer has a bona fide business reason to terminate the employee.
The federal law does not require businesses to pay workers on medical leave, but state or local laws may be broader, such as the New York State Paid Family Leave statute, which requires businesses to pay a percentage of wages to employees on leave.
A pattern of unfavorable treatment toward older workers can constitute discrimination. The federal Age Discrimination in Employment Act (ADEA) outlaws discrimination based on age, protecting workers aged 40 and up. The Equal Employment Opportunity Commission (EEOC) is the watchdog agency for enforcement against discriminatory practices.
The State Department and Department of Labor offer guidance regarding reasonable accommodations under the ADA. These resources are available for education and advocacy. Older workers should not feel alone in the process.
For the specific facts of an employment situation, the worker may wish to seek legal counsel. Local Bar Associations can refer people to attorneys, clinics or free legal services concerning workplace issues.
Tips for Successful Requests
A physical impairment that impacts a job function may be addressed with something as simple as an ergonomic chair to alleviate back pain. Other issues may be more involved, for example, an ambulatory disability that necessitates relocating an office for access to supplies, files or bathrooms. Large computer screens or sound amplification are supports that might be sought. Older workers may need flexible schedules or extended medical leave.
An accommodation must be reasonable in terms of the job requirements and the resources of the business. Company size is a factor. The smaller the company, the harder it may be to provide support in terms of expense and impact on the operations. In contrast, a large corporation may be able to absorb the cost or temporary loss of an employee’s services.
In smaller companies, workers will most likely request an accommodation directly to the owner or supervisor, whereas workers at large corporations would be more likely to start with a Human Resources director. Greg Lisi, head of the employment and labor law practice for a law firm in Uniondale, New York, strongly recommends putting the request in writing. “Your request can be oral but should immediately be followed by an email confirming the interaction and restating what support you are seeking,” Lisi said. “Making a record of requests will offer protection in the event of an unlawful termination.”
It’s a sound approach for you to state the medical reason for your request. Prepare to provide a doctor’s letter if asked, or take the initiative to offer one before being asked. Establishing a history of medical visits for treating the disabling condition may make it easier to obtain documentation. If a doctor declines to write a letter, the patient’s record should be enough to satisfy the demand. Even where the medical reason is indisputable, the employee’s request may be unreasonable or cause undue hardship where the basic functions of the job can’t be accomplished if the accommodation were given.
Explore Compromise Solutions
Employers are within their rights to offer alternatives or compromises, Lisi said. “Once a request is made, the employer must either accommodate it or engage in what is called the ‘interactive process’ in which alternative solutions are considered for addressing the employee’s need.” For example, if a request for working remotely would undermine a sales position, a flexible schedule could be offered instead.
Joshua P. Frank, an employment lawyer with an employees’ rights practice in Garden City, New York, says, “An employer may be held liable if the employer fails to engage in the interactive process in good faith, terminates an employee based on their disability or retaliates against an employee for requesting an accommodation.”
Regarding medical leaves, Frank cautions, “If possible, provide the employer with an expected return date and revise it if the time frame changes. An employer is not legally obligated to hold a position open indefinitely.” The job may be held open longer if there is a return-to-work date.
Hope for the Best; Prepare for the Worst
All the laws protecting disabled workers provide that termination because of an accommodation request may constitute prohibited retaliation. There might also be more subtle discrimination. The employee should be vigilant as to any negative impact on benefits including raises or promotions and observe whether younger employees are being treated more favorably, which can be discriminatory. Lisi recommends putting complaints in writing in case litigation becomes necessary.
In the final analysis, employees have a protected right to seek workplace accommodation and flexibility for age-related disabilities. Employers are permitted to refuse the measure if it would cause the business undue hardship. What employers cannot do is ignore a request or retaliate against the worker for seeking it.