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Older workers returning to work after pandemic face questions of safety and discrimination. So do their employers

The Tampa Bay Times asked two area lawyers for tips on identifying and avoiding workplace discrimination.
A Publix grocery worker collects shopping carts in the parking lot of the Publix store at 1075 Pasadena Avenue South, South Pasadena on April 17. The worker wears a mask due to the coronavirus pandemic.
A Publix grocery worker collects shopping carts in the parking lot of the Publix store at 1075 Pasadena Avenue South, South Pasadena on April 17. The worker wears a mask due to the coronavirus pandemic. [ SCOTT KEELER | Times ]
Published Jun. 25, 2020

As Florida businesses reopen after coronavirus-related closures, some older workers are grappling with the decision of whether to return to work and may be concerned that employers could use the pandemic as a way to unload older staffers? Some employers, meanwhile, are concerned about bringing back workers, including older ones, for whom the coronavirus is especially dangerous. Can or should businesses make special concessions for employees 60 and older?

The Tampa Bay Times asked attorneys on either side of the issue. We’ve edited their responses for clarity and length.

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Robin Stover is the Financial Stability and Housing Managing Attorney for Gulf Coast Legal Aid. Forty percent of the Pinellas organization's clients are older than 60.
Robin Stover is the Financial Stability and Housing Managing Attorney for Gulf Coast Legal Aid. Forty percent of the Pinellas organization's clients are older than 60. [ Robin Stover ]

The Times spoke with Robin Stover, the financial stability and housing managing attorney for Gulf Coast Legal Aid in Pinellas County about older employees returning to work. Stover estimates that 40 percent of the center’s clients are older than 60.

How might the pandemic play into workplace discrimination toward seniors?

This pandemic could be seen as an opportunity to lay off or let go of older employees. This is probably occurring now.

There can be added costs with older employees. Older employees may cost more to insure. They may get higher salaries. They may or may not be stereotyped to be less technologically savvy or less capable to work virtually or remotely.

What documents should seniors collect for a lawyer to review if they suspect they have been laid off unjustly or discriminated against?

A person who suspects that a layoff is imminent or has been laid off should record the date and time of all conversations and indications that a layoff is coming or any unusual activity in the workplace, because these cases are very fact specific.

Are there other layoffs at the company? Are the layoffs spread out equally across the board, or is the employer taking the opportunity to lay off more of the older workers? Are there comments made about their age, experience level and nearness to retirement?

Do employers have to make coronavirus-related accommodations for senior workers?

The Age Discrimination and Employment Act prohibits discrimination against people who are 40 and older. But you don’t get an accommodation simply because you’re an older worker.

But if the senior has an underlying condition, such as a disability of some sort, then they may be able to ask for a reasonable accommodation under the Americans with Disabilities Act.

What would you advise those trying to decide whether to stay safe at home and risk losing their jobs, or to go out to work?

It is such a personal decision. For most seniors, if they’re working at a job such as a service job, they’re working at that job because they need that income to supplement their Social Security income. So they really do have to weigh the pros and cons.

Older workers need to work at a place that adheres to social distancing and requires masks. If the employer decides not to do that, then that’s a decision that they have to make based on their financial situation, health and values.

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The Times also spoke with Tampa employment attorney Kevin Johnson, founder of the law firm Johnson Jackson PLLC, about how employers are making decisions about layoffs and keeping workers safe. Johnson’s firm represents hospitals, retail stores, restaurants and other local businesses.

Attorney Kevin Johnson.
Attorney Kevin Johnson. [ STEVE WIDOFF | Kevin Johnson ]

Where are employers saying to you about the coronavirus and their workers?

We’re hearing a lot of, ‘What about people that are especially vulnerable to COVID?‘—whether it’s because of their age or if they have some medical conditions.

They’re also asking: ‘What can we do, because if we bring them back too soon and they get sick, are they going to sue us?’ So there’s a little concern about that. And obviously the other thing is, we’re talking about people the employers are close to. You don’t want to get your work family sick or put them at risk.

How do employers ensure that they’re not discriminating against older workers as they contemplate furloughs and layoffs?

Many layoffs or furloughs are company-wide and therefore inherently non-discriminatory. To the extent that some employees remain employed, it’s usually based on the level of need for that position.

Most companies are sensitive to age discrimination concerns and try to make sure that they use non-discriminatory selection criteria on layoffs.

Are employers doing anything special for older workers during the pandemic?

What we’ve generally been saying is you ought to listen to the employee and let them sort of self-select whether they are concerned. And if they come to you and say, ‘Listen, I’m compromised, or I had this particular issue where I don’t feel like coming back in to work yet,’ then maybe we can work out a reasonable accommodation that lets them stay home for a few more weeks.

Then you also have to look at telework as another possibility.

Age discrimination laws don’t typically require accommodation of older workers, but many of the companies I’m hearing from are willing to try to work with older workers to keep them safe from the virus.

For assistance in Hillsborough and Pasco Counties, call the Bay Area Legal Services at (813) 232-1343. And for legal counseling in Pinellas County, call Gulf Coast Legal Services at (727) 821-0726.

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