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under the federal Americans with Disabilities Act and/or other federal or state fair employment laws. If an employ- er ignores the request for adjustments allowing the employee to remain produc- tive, these may be the basis for claims of discrimination (intentional or uninten- tional) on the basis of disability.

Employee Benefits

  • Employers are not required by law to pro- vide health insurance to their employees (or retirees). But employers that offer health care benefits may not discriminate against older workers (or retirees) by refus-

ing to cover them, or by reducing their benefits because of their age. (The federal EEOC has proposed an exception to the ADEA permitting employers to limit, or eliminate altogether, health care benefits for retirees when they reach 65—Medicare age. AARP has challenged this proposal, and its status will be determined by the federal courts.) However, the ADEA does allow employers to reduce benefits of older workers as long as they spend the same amount of money on these employees as they do on younger ones. However, the cost of the benefit must increase with increasing age.

Waivers and Release Agreements

If an employer decides to terminate an employee and either offers severance pay or makes an offer of early retirement, the law allows you to ask the employee to sign a release waiving his rights and claims under the ADEA.

The employee may waive rights or claims only in exchange for money or other bene- fits that exceed those to which he or she is already entitled.

The employee must be advised in writing to consult with an attorney before signing the agreement.

You must give the employee 21 days to consider the agreement before he or she signs it (or 45 days if the employee is terminated in a group layoff).

The employee must have the right to revoke the agreement within 7 days after signing it.

However, the law is very specific about the pro- cedure that must be followed, consistent with general legal requirements that waivers and releases be known and voluntary, and compels employers to comply with the following requirements:

  • The waiver must be part of an agreement written in plain language.

  • It must specifically refer to rights or claims arising under the ADEA.

  • The employee may not waive rights or claims that may arise after the date that the waiver is signed.


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