Employment Disputes on the Horizon

By Lehr Middlebrooks Vreeland & Thompson, P.C.

October 29, 2018

We recently were invited to present to London insurance specialists our assessment of what we think employment disputes of the future will involve. We all know that we are in the middle of severe turbulence over workplace sexual harassment and assault matters, but, ultimately, we think that proactive employer approaches to prevent and address harassment that does occur will help reduce the incidences of sexual harassment and mitigate the risk of liability. The long-term risks that we see involve matters employers will actually have little control over, and those relate to age, disability, and FMLA issues.  
Today, those who are 65 and older in the United States amount to 13.6% of our population. By 2030, it will total 71 million people, or 19.6% of our population, with 19.5 million of that group being over the age 80. Now that all sounds well and good from a life-expectancy standpoint, but here is the issue that employers will face: 30% of Americans who are at or near retirement age have less than $10,000 in liquid assets and 24% have between $10,000 and $99,000 for retirement. 53% of employers offer some type of retirement plan, such as a 401(k). Yet, 68% of employees between ages 25 and 64 do not participate in those plans, even if there is not a requirement for an employee contribution in order to receive an employer match.
These demographic trends portend a future where age discrimination claims will rise related to termination and failure-to-hire decisions. Employers will feel pressure to transition older employees in order for less experienced and recently trained or educated employees to move in. Overlay these statistics with the increasing number of retirement age Americans who support their adult children, and one can see that in the workplace, a job will be something precious for an older employee to hold on to.
American public health trends are alarming, and thus ADA and FMLA issues will increase. There are examples of what we refer to as alarming:

•    1/3 of all children and adolescents are overweight or obese.
•    70% of American adults are treated for chronic stress or disease.
•    As an outcome of lifestyle and chronic illness, the primary diseases are cardiovascular, type 2 diabetes, hypertension, high cholesterol, high blood pressure, depression, anxiety, stress, and infertility. Heart disease is the leading cause of death in the U.S.
•    250 million Americans are overweight.
•    Americans lead the world in obesity yet consume 80% of the world's weight loss products.
•    25% of U.S. children spend 4 hours a day watching television and playing on phones instead of engaging in physical activity.
•    Children today in the U.S. will not live as long as their parents.

With a low threshold of what it means to be disabled under the Americans with Disabilities Act and also what constitutes a "serious health condition" under the Family Medical Leave Act, employers will face ever-increasing numbers of attendance, reliability, and productivity issues to manage in light of employer obligations under these laws. For example, it is a statistical probability that every employee will have an FMLA-related issue; if not the employee's issue, then a family member's. With older employees needing to remain in the workforce because of insufficient retirement savings, certain medical issues that become part of the aging process will create the double statutory issues of individuals in that protected class: ADA and ADEA (though employers have no obligation to accommodate age, many age-related conditions may qualify as disabilities).  
The national focus on sexual harassment, assault, and harassment in general is long overdue and will elevate the level of respectful behavior that should occur at the workplace and beyond. However, from a long-range planning and preparation standpoint, employers should evaluate issues regarding the age of their workforce and the potential ADA and FMLA implications of employee health.

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