About this episode:
As the working population ages, age-related concerns become a larger issue for employers. According to a recent study, up to 20 percent of people over 65 have dementia or another cognitive impairment that affects them day to day. Ryan Nelson, Utah president of Employers Council, talks about how employers can support these employees without compromising business efficiency or running afoul of discrimination or disability laws.
[The following has been edited for grammar and clarity.]
Lisa Christensen: Hello and welcome to UB Insider. I’m Lisa Christensen, online editor at Utah Business magazine. As the working population ages, the cognitive health of employees is becoming a larger issue for employers. About 5% of people over 65 have dementia, with another 10-15% likely to have some other cognitive impairment that affects them day to day. Ryan Nelson, Utah president of Employers Council is here to talk about what employers should know and how they can support employees with cognitive diagnoses or age-related impairments. Welcome.
Ryan Nelson: Thank you, Lisa. It’s great to be here.
Lisa Christensen: So tell me about this problem. There was a recent study, correct?
Ryan Nelson: Yeah. The study was conducted by Dr. Andrew Budson of the VA Boston healthcare system. And as you described, he estimated that approximately 20% of the workforce ages 65 and older have some type of cognitive impairment or a cognitive diagnosis such as dementia.
Lisa Christensen: So exactly how big of a problem is this for employers and the workforce?
Ryan Nelson: Great question. Looking at the Department of Workforce Services data for the state of Utah, I did a little bit of math. According to his study, 20% of the workforce age 65 and older has, statistically speaking, some type of dementia-related issue. So out of a workforce that’s age 65 and older, you have about 60,000 employees here in Utah. 20% of that is roughly 12,000 employees – so not a significant amount, but it’s not so much the number of individuals who may have this, as it is if it does happen, what does an employer do? What should an employer look for? How does an employer address it? And that’s just from the employment relationship. What about the management of the individual and caring for an individual who might cognitively be declining? Those are challenging questions that an HR practitioner needs to deal with and needs to know how to adequately handle.
Lisa Christensen: As we were chatting before we started recording you mentioned that this year is the 50th anniversary of the Age Discrimination Act. When you’re talking about looking out for these kinds of impairments you’re running up against a whole bunch of other issues including age discrimination. So tell me, what are some ways that employers can abide by those but laws while supporting their employees and managing their workforce?
Ryan Nelson: That’s a great question. It illustrates the difficult position that employers are often stuck in. They’re kind of in the middle ground where they could get in trouble no matter what they do. So there’s a very delicate line that an employer needs to walk.
So the Age Discrimination & Employment Act applies to employers that have 20 or more employees. If you’re above that 20 employee threshold you have these age discrimination requirements that are applicable to your workforce. So if an employer becomes aware of this study and has employees that are 65 years old or older they may start to question, what am I looking for? Do I have an issue? I think there could be a tendency for an employer or individuals at the company to have a knee-jerk reaction and assume that their older employees must have this issue and therefore they need to take action.
So the first thing I would recommend that an employer do is not have that knee-jerk reaction. That’s an emotional response that doesn’t serve anyone well at all and potentially puts the employer directly in the crosshairs of an age discrimination claim. You’re not going to assume that just because someone is 65 or older that they have that impairment or that they can’t perform the functions of their job. In fact, you mentioned the EEOC’s push with this 50 year celebration of the age discrimination protections – their motto or headline this year is that ability matters, not age. So an employer, first and foremost, shouldn’t draw the conclusion that just because you have an older employee, you therefore have a problem or issues with performance.
Lisa Christensen: So if you have five employees age 65 and older you shouldn’t be thinking, which one of these is susceptible, or which one of these has an issue to deal with.
Ryan Nelson: Yeah. In general, targeting an employee just to support what a statistical analysis suggests is not a good place to start. The better place for an employer to start is with performance issues. We’re looking at the essential functions that an employee performs. What are those? If the employee is not performing those essential functions then you deal with the performance without necessarily looking for some sort of underlying issue. Start with the performance. That’s the safest and best approach for an employer when they’re dealing with an older worker who may have or may not have dementia.
If an employee’s performance isn’t up to par, the employer should be asking themselves the question: How do we deal with performance? How do we manage performance? If it’s not to the level that we would expect, then what would we do? What would we do with a 25 year old employee who’s not meeting those expectations? That’s the safer question and the safer approach.
Lisa Christensen: So how does an employer go about approaching this with an older employee?
Ryan Nelson: Let’s take a couple of different examples. Let’s assume that the employer has five employees over the age of 65, sees or hears the statistic and concludes, ok, one of these five potentially has this issue. The first recommendation that I would have for that employer is not to have a knee-jerk reaction. You’re focusing on performance. If all five of those five employees are performing adequately, you do nothing. You have a well-performing workforce and there’s nothing that you need to do.
If you have a performance problem with any of those employees, whether it’s related to dementia or some other issue, if their performance drops below what you expect then address the performance. Now if an employer has knowledge or an awareness of the dementia issue, maybe the employee has disclosed it or maybe there’s been medical information shared, and it correlates with a steady decline in performance, then an employer has a couple of concerns that they need to navigate.
One of those is the Age Discrimination & Employment Act, while the other is the Americans With Disabilities Act. The ADA applies to employers that have 15 or more employees. So in that instance you’re looking at two laws, what they require and what they prohibit. If an employer has knowledge that an employee has a cognitive impairment they should ask the question, do we have a disability? If it is, and it probably is, there’s a process that the ADA sets out to successfully navigate that with the employee. It’s kind of a due process or a procedural process that an employer follows. We approach an employee and basically say that we are aware that they have a disability. We also are aware or we think or reasonably believe that the disability is causing an impact on the performance of A, B or C essential functions of their position. Because of that the ADA requires us to have a discussion.
It is oftentimes uncomfortable for a lot of employers, managers or the individuals who need to have these discussions. It’s uncomfortable to approach somebody and say, “You’ve got this issue and your performance is kind of crappy and we need to deal with that.” But they have to do it. If they don’t then they have performance that’s declining and standards that aren’t being met. The employer has knowledge of a disability and a connection between that and the employee’s performance and as such the employer is vulnerable if they don’t deal with that. We call this discussion the interactive process.
The interactive process is just that, we’re interacting with the employee and as necessary bringing in medical information from a healthcare provider who can shed additional light on the issue. The goal of the ADA process is to enable performance. The disability impairs performance and the goal of the ADA is to overcome that and enable performance to the same standards and expectations that we have for anyone else in that position. The goal, again, is to get the employee working and doing the job.
Lisa Christensen: The workforce is getting older as well. People are also retiring older and older or re-entering the workforce. I assume that would impact this issue as well.
Ryan Nelson: Oh, absolutely. Let’s assume we experienced a significant drop in the stock market during the past few days. And heaven forbid it continues to dip, but if it does, you may have former employees, retirees, who are now feeling that their retirement is not where it needs to be. They are entering back into the workforce. That’s not a bad thing. But I think there could be that initial knee-jerk reaction, which I would caution employers against, that just because it’s an older worker that there are issues or that they can’t perform.
I think the EEOC’s motto with the ADEA push this last year and into this year, that ability matters not age, that’s really the question that employers should ask. Each age demographic in the workforce has something to add. The question is again for the employer, do I have a need that this individual, whether they’re an older worker or not, can meet? If so, great. Bring them in. Make them a productive part of your employment and have them be contributors. I think there’s great value in that.
Lisa Christensen: What are some things that employees within a workforce that has someone who might be struggling should be considering or should do to help support that individual?
Ryan Nelson: Great question. Often employees will talk. They will communicate with each other and they may share medical information. They may say, “Hey, I’m struggling with this…” or “I had this doctor’s appointment…” Coworkers now have an awareness of those issues and that can be challenging for the coworker because in some instances, what can they do to help? They’re just a colleague. They just work in the cubicle next to you. I think fundamentally, and this comes from just a humanistic perspective, you just need to be supportive and understanding.
This also touches on a third issue that could be harassment or discrimination – don’t allow your knowledge or awareness of that issue to influence how you treat that individual. That behavior puts the employer in the crosshairs of a potential discrimination or harassment claim. When I as a coworker treat another coworker differently – tease, harass, treat them in a way that interferes with their ability to do their job because of their age, their gender, the color of their skin – that’s harassment. The employer is obligated in that instance to step in, intervene, and deal with it. As humans we have these tendencies to react to things that are not comfortable or perceived to be normal. I would caution against that.
Lisa Christensen: What are some resources that employers or individuals can turn to to help manage this or navigate, as you mentioned, a very narrow path.
Ryan Nelson: There’s quite a few resources in the market. All of the agencies that deal with employment law, both state and federal, have an abundance of resources online that employers can freely access, download and utilize. They can do that for training or for just an understanding. They can circulate and push those amongst their employees and that’s often what we do at Employers Council. We have links and connections to those websites and are often pulling information off of them and funneling that over to an employer as an additional resource.
There are associations that can be used as resources – Employers Council, obviously and the SHRM organization. There are other business associations and some chambers focus on this. There are a lot of resources out there that employers can look to for guidance and advice.
One of the key resources that I think all employers should have is an employment law attorney. They can help them walk through and provide customized legal advice based on the unique circumstances that the employer has in their workforce at that time. Having that type of customized advice is critical because a good employment law attorney is going to identify your areas for concern and also provide paths for you to take. They can provide options: high risk, low risk, medium risk. You choose whichever one it is you want and they will explaint the consequences or the liabilities that you should think about. So a good attorney in that instance is going to walk a company through the situation, provide viable, defensible and appropriate outcomes but then step back and let the employer choose what is best suited for their culture and their tolerance for risk. It’s their company and it’s their choice. Let them make that decision
Lisa Christensen: Is there anything else that you’d like to add about this issue?
Ryan Nelson: I think it’s just a passionate issue that touches on a lot of areas and employers need to be aware of it. They need to be careful with how they deal with these issues. Employers, and I see this all the time, we represent hundreds of employers here in Utah, and what we often see is emotion or business interfering with an employer’s ability to stop and adequately address these types of situations when they come up. So having those resources, having a trusted advisor who you can turn to to obtain advice, to obtain information and then better navigate through it is crucial. An employer is better off proactively addressing these situations than reactively trying to unwind the problem. It’s like fishing, if you get a knot in the line it’s not worth it to try and undo the knot. Often you have to just cut the line and start over. So we want to avoid that and get involved upfront and be proactive.
Lisa Christensen: Okay, well thank you so much.
Ryan Nelson: You’re welcome, thank you.
Lisa Christensen: Thanks also to Mike Sasich for production help. Find out more about us at UtahBusiness.com or on social media at @utahbusiness.com and drop us a line at email@example.com. Don’t forget to subscribe to us on Google Podcasts, Apple Podcasts, Stitcher or wherever else you get your podcasts. Thanks for listening.