Age Discrimination, Workplace Issues at House Hearing

Published in RINewsToday.com on March 22, 2021

Just days ago, Rep. Robert C. “Bobby” Scott (D-VA), chairperson of the House Committee on Education and Labor and Rep. Rodney Davis (R-IL) introduced, H.R. 2062, the bipartisan “Protection Older Workers Against Discrimination Act” (POWADA), a bill that would strengthen federal anti-discrimination protections for older workers. The legislation was introduced March 18, 2021, the same day of a joint House Education and Labor Subcommittee hearing, held to address a variety of workplace issues.  POWADA has been referred to the House Committee on Education and Labor for consideration.

The reintroduction of POWADA is timely.  As the COVID-19 pandemic continues, older workers are attempting to keep their jobs, working more and longer than they ever have. When seniors lose their jobs, they are far more likely than younger workers to join the ranks of the long-term unemployed. And unfortunately, discrimination appears to be a significant factor in older workers’ long-term unemployment.

A 2018 survey conducted by the Washington, DC-based AARP found that 3 in 5 workers age 45 and older had seen or experienced age discrimination in the workplace. The 2018 survey also found that three-quarters of older workers blame age discrimination for their lack of confidence in being able to find a new job.

Congress Gears Up to Again Fight Age Discrimination

Reps. Scott and Davis were joined by seven Republicans and 14 Democrats, including Civil Rights and Human Services Subcommittee Chair Suzanne Bonamici (D-OR) and Workforce Protections Subcommittee Chair Alma Adams (D-NC) to support H.R. 2062.

Rhode Island Rep. David Cicilline has also requested to be a co-sponsor of this legislation.

POWADA was first introduced in Congress after an adverse 2009 Supreme Court decision, Gross v. FBL Financial Services, made it much more difficult for older workers to prove claims of illegal bias based on age. Under Gross, plaintiffs seeking to prove age discrimination in employment are required to demonstrate that age was the sole motivating factor for the employer’s adverse action.  The Supreme Court ruling upends decades of precedent that had allowed individuals to prove discrimination by showing that a discriminatory motive was one of the factors on which an employer’s adverse action was based.

Scott’s reintroduced POWADA returns the legal standard for age discrimination claims to the pre-2009 evidentiary threshold, aligning the burden of proof with the same standards for proving discrimination based on race and national origin.

“Everyone– regardless of their age – should be able to go to work every day knowing that they are protected from discrimination. Unfortunately, age discrimination in the workplace is depriving older workers of opportunities and exposing them to long-term unemployment and severe financial hardship, says chairperson Scott, noting that the reintroduced bipartisan bill would finally restore the legal rights under the Age Discrimination in Employment Act, which covers workers age 40 and over.

Republican Rep. Rodney Davis puts aside political differences and has stepped up to the plate with a handful of GOP lawmakers to co-sponsor Scott’s POWADA legislation. “Every American, including older Americans, deserves to work in a workplace or jobsite that is free from discrimination. That’s why I’m proud to team up with chairperson Bobby Scott and a bipartisan group of lawmakers in introducing the Protecting Older Workers Against Discrimination Act. Our bipartisan bill provides workplace protections for older workers by removing barriers they have to filing discrimination claims, ensuring their workplace rights can be enforced, says Davis, pledging to work with colleagues on both sides of the aisle to finally get the bill passed,” he says.    

Oregon Rep. Bonamici, who chairs the Subcommittee on Civil Rights and Human Services, notes that her state has a rapidly aging population, and age discrimination in the workplace remains disturbingly pervasive.  She joins Scott in cosponsoring POWADA.

“I’ve heard from Oregonians who were denied or lost a job because of their age, but the bar for proving discrimination is very high and the outcomes are uncertain. The bipartisan Protecting Older Workers Against Discrimination Act makes it clear that unlawful discrimination in the workplace is unacceptable and holds employers accountable for discriminatory actions,” says Bonamici.

Adams, who chairs the Subcommittee on Workforce Protections, joins Bonamici in cosponsoring POWADA.  The North Carolina Congresswoman states: “Labor law must protect the dignity of all workers and it must recognize that discrimination against older Americans is discrimination all the same,” says Adams, who chairs the Subcommittee on Workforce Protections. The North Carolina Congresswoman notes that POWADA ensures that older workers will be fairly treated in the job market, returning the legal standard for proving discrimination back to its original intent. There is no place for disparate treatment based on age in the workforce.”

“Labor law must protect the dignity of all workers and it must recognize that discrimination against older Americans is discrimination all the same,” says Adams, who chairs the Subcommittee on Workforce. The North Carolina House Lawmaker says that POWADA ensures that older workers will be fairly treated in the job market, returning the legal standard for proving discrimination back to its original intent. There is no place for disparate treatment based on age in the workforce.

“The introduction of this bill is a crucial step to strengthening the law and restoring fairness for older workers who experience age discrimination,” said Nancy LeaMond, AARP Executive vice president and Chief Advocacy & Engagement Officer. “It sends a clear message that discrimination in the workplace – against older workers or others – is never acceptable.

“Age discrimination in the workplace, like any other kind of discrimination, is wrong.,” said AARP Rhode Island State Director Kathleen Connell. That’s why AARP is fighting all forms of age discrimination in the hiring process and on the job, including an unfair court decision that makes age discrimination more difficult to prove than race- or sex-based discrimination. “Rhode Islanders are living and working longer and experienced workers bring expertise, maturity, and perspective,” Connell added. “Yet negative stereotypes and mistaken assumptions mean that older people are often treated unfairly in the workplace. We need bipartisan Congressional action to address this stubborn and persistent problem.”

Tackling Workforce Issues

Over two-hours, four witnesses testified at a joint Zoom hearing, “Fighting for Fairness: Examining Legislation to Confront Workplace Discrimination,” held before the House Education and Labor Subcommittee on Civil Rights and Human Services and the Subcommittee on Workforce Protections. The morning hearing addressed an array of workforce issues including race and longstanding gender inequities and barriers and pregnancy discrimination at the workplace. A spotlight was also put on the rampant increase of age discrimination that older workers are now facing in the job market and the need to pass POWADA to reverse the detrimental impact of a 2009 Supreme Court decision.

Lauren McCann, senior attorney at AARP Foundation, pointed out to the attending House lawmakers that age discrimination in the workplace remains “stubbornly persistent” and urged a House Education and Labor hearing to “re-level the playing field” by passing strong anti-bias legislation.

McCann told the committee that the ongoing COVID-19 pandemic has exacerbated the problems faced by older workers, who have left the labor force in the last year at twice the rate during the Great Recession.

McCann testified that passage of POWADA, sponsored by Scott, the Chair of the House Committee of Education and Labor, is crucial to reverse the 2009 Supreme Court decision in the Gross v. FBL Financial Services, Inc. case. McCann said that the high court’s 2009 decision abruptly changed the standard — from the longstanding requirement under the ADEA that a worker prove that age is just one motivating factor in adverse treatment on the job — to a much higher and tougher to prove standard: that age is the standard motive.

“Older workers now always bear the burden of persuasion in ADEA cases,” McCann emphasized.

According to McCann, House hearing comes at a time when older workers have been battered by the economic downturn caused by the pandemic. Unemployment for workers age 55 and older more than doubled between Feb. 2020, just before the pandemic began, and last month, based on AARP Public Policy Institute (PPI) analysis of federal data.

The number of age 55 and over unemployed has also doubled, up from one million in February 2020, to 2 million last month, according to PPI.

Turning to the Senate…

At press time, a senior Senate aide for Sen. Bob Casey (D-PA), who chairs the Senate Special Committee on Aging, says the Senator is posed to follow the House by throwing the Senate’s POWADA Senate companion measure into the legislative hopper Monday. 

The Pennsylvania Senator clearly understands why he again must push for the passage and enactment of POWADA.  “As more Americans are remaining in the workforce longer, we must recognize and address the challenges that aging workers face. We must make it clear to employers that age discrimination is unacceptable, and we must strengthen antidiscrimination protections that are being eroded,” says Sen. Casey. “POWADA would level the playing field for older workers and ensure they are able to fight back against age discrimination in the workplace.”

AARP Rhode Island Shows RI Facilities Remain Hotbed for COVID-19

Published in RINewsToday on February 14, 2021

As the Rhode Island Health Department (RIDOH) announces that cases of COVID-19 are declining and is loosening up restrictions on the reopening of bars and our social gatherings, AARP Rhode Island warns that the state’s nursing homes remain a hotbed for COVID-19 infections, and the “death rate remains disturbing.”  Rhode Island’s largest aging advocacy group calls on the General Assembly to take action this session to enact legislation to protect facility staff and residents. 

Since the beginning of the pandemic, more than 162,000 residents and staff in nursing homes and other long-term care facilities have died nationwide, and nearly 1.3 million people are known to have been infected with coronavirus in these facilities. Rhode Island has recorded 1,430 deaths in skilled nursing facilities, nursing homes, assisted living facilities and other eldercare facilities.
On Feb. 11, AARP Rhode Island released its Nursing Home COVID-19 Dashboard, the data revealing that the COVID-19 pandemic crisis in these facilities still continues despite incremental improvements in all four dashboard categories.

The dashboard analyzes federally reported data in four-week periods going back to June 1, 2020. Using this data, the AARP Public Policy Institute, in collaboration with the Scripps Gerontology Center at Miami University in Ohio, created the dashboard to provide snapshots of the virus’ infiltration into nursing homes and impact on nursing home residents and staff, with the goal of identifying specific areas of concern at the national and state levels in a timely manner.

Taking a Snapshot 

According to the data (Dec. 21 to Jan. 17) from AARP Rhode Island’s latest Nursing Home COVID-19 Dashboard, the rate of new coronavirus cases per 100 residents declined from 15.7 to 10.6 among residents and from 12.5 to 10.6 among staff. While cases are lower than in the previous time period, resident cases remain the second highest in New England in AARP’s dashboard analysis, with nearly four times the cases in Rhode Island nursing homes reported in October and November.

Meanwhile, the latest dashboard data indicated that resident death rates dropped from 2.60 to 1.82 for every 100 people living in a nursing home and that nursing home staff cases dropped from 12.5 per 100 workers to 10.6.The dashboard also reveals that PPE shortages dropped sharply. Shortages of personal protective equipment (PPE) have declined from 20.3 percent of nursing homes without a one-week supply to 4.3 percent — the lowest number since the first dashboard report in June, 2020. Staff shortages were relatively steady, dropping from 41.9 percent of facilities reporting shortages to 40 percent.

AARP Rhode Island calls on Governor Gina Raimondo and Lt. Governor Dan McKee to protect nursing home residents and staff from COVID-19. “We are approaching the one-year anniversary of the first known coronavirus cases in nursing homes, yet they remain appallingly high, said AARP Rhode Island State Director Kathleen Connell in a statement announcing the release of the latest dash data said, “The devastation this pandemic has brought to nursing home residents and their families has exposed fundamental reforms that must be made in nursing homes and to the long-term care system. We cannot lower our guard, she says.

AARP Rhode Island’s COVID-19 Legislative Agenda

The Rhode Island nursing home industry has struggled with quality care and infection control for years. Connell called for Rhode Island lawmakers to act immediately, focusing this year on: 

1.   Enacting or making permanent the components of AARP’s five-point plan:·         

— Prioritizing regular and ongoing testing and adequate personal protective equipment (PPE) for residents and staff—as well as for inspectors and any visitors.·  

—  Improving transparency focused on daily, public reporting of cases and deaths in facilities; communication with families about discharges and transfers; and accountability for state and federal funding that goes to facilities.·         

— Ensuring access to in-person visitation following federal and state guidelines for safety, and require continued access to virtual visitation for all residents.·        

—  Ensuring quality care for residents through adequate staffing, oversight, and access to in-person formal advocates, called long-term care Ombudsmen.

2.      Reject immunity and hold long-term care facilities accountable when they fail to provide adequate care to residents.

3.      Establishing minimum nursing staffing standards.

4.      Ensuring that increases in facility’s reimbursement rates are spent on staff pay and to improve protections for residents.

5.      Ensuring progress is made so that in-person visitation can safely occur and facilitating virtual visitation.

“Additionally, our leaders must reject policies that take away the rights of residents to hold nursing homes accountable when they fail to provide adequate care, Connell added. “Now is not the time to let nursing homes off the hook for abuse, neglect, and even death.”  AARP Rhode Island wrote a letter to Gov. Raimondo, urging her to withdraw her nursing home immunity Executive Order.  At press time, there has been no reply.

As the first year of the COVID-19 pandemic approaches, RIDOH notes that 64 percent of all deaths have women and men in Rhode Island’s nursing homes and assisted living facilities. In the past 13 days, 116 new cases in these facilities have been diagnosed – with 41 new deaths. At weekly updates from Dr. Nicole Alexander-Scott, it used to be that the death statistics were broken down by age, noting how many were lost “in their 60s, in their 70s”, etc. but notably this no longer is reason for pause and expression on condolence.

Unless Rhode Island lawmakers act quickly, older Rhode Islanders in these facilities will continue to be at a very high-risk of catching COVID-19 and the fatality death rate will remain disproportionately high for seniors. As residents receive their vaccine shots, first and second, we in turn hope that the refusal rate of staff to the vaccination is going down.

It’s time to act. 

The full Nursing Home COVID-19 Dashboard is available at  www.aarp.org/nursinghomedashboard.  

For more information on how COVID is impacting nursing homes and AARP’s advocacy on this issue, visit www.aarp.org/nursinghomes.

AARP: Vaccinate seniors now!Leaders respond. Add YOUR voice.

Published in RINewsToday.com on January 25, 2021

The debate heats up as to how Rhode Island should distribute its limited stock of COVID-19 vaccine. Days ago, AARP Rhode Island urged state officials and lawmakers to put seniors on the top of the list to protect their lives. Older Rhode Islanders should be a priority in getting vaccinated, says the state’s largest nonprofit. 

AARP Rhode Island, generally speaking, reserves sending public letters to public officials for the most critical of issues. Because of the pandemic, a critical issue, AARP is reaching out to its 132,000 Ocean State members and the public at large to demand immediate change.

“The message AARP wants sent to the Governor and State Leaders reads, in part, “Rhode Islanders 50 and older account for 98% of the state’s more than 2,000 COVID deaths. Yet only a quarter of vaccinations to date have been administered to older Rhode Islanders. You must revise the plan to vaccinate the most vulnerable among us. I am therefore calling on you to revise the state vaccination plan immediately to prioritize vaccinating our 50 and older population. There is no time to waste,” said AARP Rhode Island State Director Kathleen Connell.

A Call to Revising the State’s Vaccination Distribution Plan

Connell added, “Now that the state has responded to AARP Rhode Island’s call to make the state’s COVID vaccination plan and its execution more transparent, I am alarmed and dismayed to find data only now available reveals that just 25% of vaccinations to date have been administered to Rhode Islanders age 60 and older.”

“The current disparity — which flies in the face of federal health recommendations and causes great concern for many older Rhode Islanders and their families — is inexplicable, life threatening and unacceptable,” says Connell. 

AARP Rhode Island’s work is part of a nationwide effort, says Connell. “AARP is advocating hard to ensure every older American who wants to get the vaccine can get it,” said AARP Executive Vice President and Chief Advocacy & Engagement Officer Nancy A. LeaMond.

“It’s also vital that distribution plans for authorized vaccines are smoothly implemented,” LeaMond added. “There’s no time to waste: it’s time for full-scale mobilization, and any delays or early bottlenecks in distribution systems need to be addressed urgently. AARP remains committed to protecting the health and well-being of our nearly 38 million members and all Americans as we work together to defeat this virus,” she said.

Rhode Island leaders respond to AARP’s call

Speaker of the House of Representatives Shekarchi:

“We all want the most at-risk people, including our seniors, to have access to the vaccine absolutely as soon as possible. My father is 94, and it will be a tremendous relief to me and my family when he is protected,” said House Speaker Joseph Shekarchi (D-Dist. 23 Warwick). “President Biden’s timeline includes prioritizing access to the vaccine for those 65 and older, and it’s important that we comply with it,” he says.  

“I understand we need greater supply. Our House COVID-19 Vaccine Task Force will vigilantly monitor the distribution to ensure our state is doing everything we can to get the vaccine to those most at risk, particularly those 65 and older, as soon as possible, in cooperation with the federal government,” adds Shekarchi.

Dr. Chan, RI Dept. of Health:

In a Jan. 22 email vaccine update, Dr. Phillip A. Chan, MD, MS, the Rhode Island Department of Health’s (RIDOH) Consultant Medical Director, reported that 66,070 doses of vaccine had been administered in Rhode Island (52,925 first doses, and 13,145 second doses). “We are working hard to distribute vaccine, but supply remains very limited. Right now, we’re receiving enough first doses each week for about 1.5 percent of our population. While other states are in the same position, Rhode Island ranks among the top states nationally in terms of the rate of second doses administered,” he said.

As to the vaccination distribution timetable, Chan noted that nursing home residents and staff began to get vaccinated in December. “This week, we started to vaccinate in assisted living facilities and other congregate living settings.  By middle of February, we expect the vaccine will be available for adults 75 and older,” he says. 

According to Chan, there are 187,000 Rhode Islanders age 65 or older. “Since we are only getting 14,000 first doses of vaccine a week, we are taking a stepwise approach to this group as well,” he noted in RIDOH’s vaccine update.  “Please note that there is no action older adults need to take at this time to get a vaccine. When we are ready to start vaccinating this population, we will communicate with the public, healthcare providers, and community organizations to provide instructions.”

Incoming Governor, Lt. Gov. McKee:

Meeting outside Lt. Gov. Dan McKee’s Cumberland home, WPRI reporters, Eli Sherman and Brittany Schaefer, got insight into McKee’s thoughts about the state’s COVID-19 vaccine rollout strategy and issues surrounding this distribution. They report the details in a Jan. 23 WPRI blog article, “McKee: Teachers should get vaccine before others in Rhode Island.” McKee will move into the governor’s seat once Gov. Gina Raimondo is confirmed as U.S. Commerce Secretary.  

Here are some points from McKee’s interview in the Sherman and Schaefer’s blog article: 

“We need to really move up on the list teachers and the support staff in schools,” McKee said. “We’re not going to open the economy until we do that, and teachers are not going to feel comfortable by and large until we get them vaccinated.” (Teachers are not in the Rhode Island Department of Health’s phase one vaccination rollout)

“Prioritizing educators would inevitably delay vaccinations for all non-educators, and McKee did not name any other group Saturday that he thought should be prioritized. When asked specifically about adults 65 years and older, McKee said he expected they would also be prioritized, but underscored the state is only receiving a limited amount of supply of the vaccine from the federal government,” says the WPRI blog.

President Joe Biden encourages states to make it a priority to vaccinate people age 65 and over, along with grocery store workers and teachers. No specifics have been released yet by his administration. 

“I think it’s a supply issue, but that age group is a priority,” McKee said. “We’re going to follow the lead of the Biden administration”.  

Stay tuned as the debate continues on how Rhode Island should disseminate its limited COVID-19 stockpile – and what it can move to when the flow of vaccine becomes more generous.

Give Governor Gina Raimondo your thoughts as to AARP Rhode Island’s call for vaccinating people age 50 and over “immediately”.  Here’s the governor’s contact details:  Governor Gina Raimondo, 82 Smith Street, Providence, RI 02903; email: governor@governor.ri.gov; phone: (401) 222-8096.