Termination Due to Age

LDay

I'm the HR Director at a non-profit social services organization.

I have two male employees who are in their late 60's. They both are in different departments and due to aging, they are not able to perform all of the functions of their job. Their health has deteriorated substantially and it has been creating an inconvenience on the other people in their own departments because they aren't able to do their jobs completely.

We would like to terminate them and my manager is hesitant until we know where we stand regarding this situation.

One of the employees is a custodian and he is really not in good health to be lifting bags of trash every day and lifting boxes of certain weights. He has had two worker's compensation claims during the past two years and it is possible that this could happen again.

The other staff member's eyesight is so bad that even with his glasses, he cannot drive the company van to transport senior citizens on trips. The potential liability of an accident occuring with riders is too great to risk.

How do we go about eliminating employees when it is obvious that it's strictly due to their deteriorating health condition. These two staff members indicate no need to resign.

Please advise.

Theresa Gegen TX

In a situation like this, I suggest you secure legal counsel to develop a plan to deal with the performance issues. There are several issues in your message that are troubling. First, please try not to assume that a performance problem is "due to age." Assuming that someone cannot work because of their age is sterotyping and illegal age discrimination. Second, the health issues may raise a need to reasonably accomodate these employees due to an actual or perceived disability. Whether an accomodation can be made (for example, for the employee who can not lift heavy trash bags, could he divide the trash and make 2 trips? Or maybe he needs training on workplace safety) must be explored.

If it is true that an employee cannot do the essential functions of his job with an accomodation, then the employee can be terminated.

You cannot presume to know whether an employee can do a job physically. If the employee's doctor says that he can physically do the job, then an employer cannot take the employee out of it because of a belief that the employee might get hurt. And if you carry workers' compensation coverage, your company may be liable for worker's compensation retaliation.

The company's basic obligation under the law is to treat all employees equally -- therefore, the performance issues must be addressed as performance issue (not age issues).

Again, this is a sticky situation, and I suggest you secure employment law counsel to help you through it.

Gillian

You do need legal counsel on this one. Your presumption that the problem is due to age is troubling. It is important to properly evaluate the cause of performance problems and your presumption seems to say that you have already decided what the issue is. Physical conditions could be covered by the ADA or a state disability statute and the circumstances need to be evaluated at the attorney who responded has suggested.

smarti

I agree with Theresa on this one. Do not try to second guess. Get legal help

(BJ)

This sounds more like an issue of disability than of age. ADA states that the person must do the essential functions of the job with or without accommodations. Are you? If the person cannot do the job, and there are no transfer possibilities, there appears to be reasons for a just cause action, inability to perform with accommdation. You need to determine if the action is the same as has been taken with persons of a younger age. This would establish that there was not age discrimination. You should also review with your attorney.

BJackson

LDay

I appreciate everyone's assistance with this issue. I also would not want to assume anything that would incur liability on the company's part. This really is a health related problem and the affect it has on a person being able to do the job they were originally hired to do. But I would rather err on the side of extreme caution than do anything in haste. I will take the advice of getting legal help on this one too.