As workers age, they generally improve their job skills and have higher job efficiency. Many don’t want to retire because they’re just getting their “second wind.”
Even so, some employers may grow concerned over the higher wages paid to their older employees who have earned raises over the years.
Also, employers might think older workers may not be able to do some physical or mental tasks as well as they once could or job requirements can change, such as learning new technology.
But stereotypes about older workers are often false. Each worker is entitled to have his or her own true abilities recognized and respected in the workplace.
Of course, there is a distinction between age and disability. A disability can occur at any age, but under federal law, a person age 40 years or older is considered an older worker.
The protections for older workers are that an employer cannot treat them any differently for compensation, hiring, discharge, layoffs, callbacks, terms and conditions of work, or privileges of employment because of their age.
A June 2020 decision from the United States Supreme Court affirmed that the same employment protections apply to gay and transgender employees of any age.
Switching to disability protections, if an employee of any age becomes disabled and their capacity to do their current job diminishes, an employer is required to offer reasonable accommodation to the employee so that the person can continue to earn a living and do their job well.
When an employee can no longer handle at least one major life activity and the employer is aware of that, then the employer must make reasonable workplace accommodations for the person’s disability.
Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working,
Many employees and employers don’t know about the requirement for providing reasonable accommodation for disabilities.
It is important that employees are aware of this opportunity to continue working so that each can help their employer help them stay in their job.
For disability protections to apply, a worker does not have to be in a wheelchair or suffer from a medical illness.
Also, in situations where the employer believes that the employee can no longer handle job tasks, even when that is not true, there is a requirement to make reasonable accommodations for the employee.
Being 40 or older is not itself considered a disability. Reasonable accommodations are required only if an employee cannot handle one or more major life activity.
When needed, an employee can make a complaint based on age, disability or other types of illegal discrimination by the employer to the West Virginia Human Rights Commission at no cost. If after investigation the complaint is found to have probable cause, the employee may be able to get his or her job back, receive reasonable accommodations on the job and/or be paid monetary damages.
Because of a real or perceived disability, some employers may decide to move the employee to a lower-paying job or require them to become an independent contractor, not an employee. Those actions are not reasonable accommodations unless the employee voluntarily agrees.
But all West Virginia workers must be aware that unless they are under a contract of employment or civil service rules, they can be let go, with or without cause. The exception is when the actual reason for discharge is discriminatory because of the employee’s age, disability, race, color, national origin, gender or genetic information.
While federal and state laws protect employees, each person needs to be proactive. If you are at least 60 years old and live in West Virginia, you can check on any employment or other legal issue by contacting the West Virginia Senior Legal Aid hotline at 800-229-5068. This assistance is free.