Asking an employee to retire
LynnyPenny
1 Post
My company has an employee who is well over the age of 65. This individual has mentioned several times in the last few years that they are planning on "retiring at the end of the year". Of course, when that time comes along, the employee continues working saying that they'll just retire next year instead.
Unfortunately, we have started to notice behavior with possible indications of dimensia or something along those lines. I'm not quite sure what to do in this situation. Can we offer the employee retirement and assign a date to it, or would that be considered age discrimination? I'm also not sure how the potential "condition" affects this. Any help or suggestions would be much appreciated.
Comments
Difficult situation. I have a couple of thoughts. We have had personnel say time and again that they will retire by such and such. . then at the last moment change their mind. That is not illegal but does create succession planning difficulties. We have however begun to have potential retirees declare their intent to retire in writing. The employee would require our agreement to withdraw the declaration.
Another thought is safety and job performance. Where-as you are not a mental or physical health monitor, you do have a responsibility for the safety of your employees and the efficient production of your business product. If one or the other of these issues is being sufficiently compromised and you can observe that it may be related to a physical or mental problem, you can send the employee for a fitness for duty exam. Set the appointment, make sure that you have an accurate essential job duty description that accompanies the employee to the medical provider. You are limited to rather or not the employee can perform the essential job duties and do it safely. You cannot ask for a general physical or mental condition of the employee.
Once the medical fitness for duty has been certified there are other measures you can take. If the employee is not performing up to a standard that is required of other employees, does not have an ADA Amendment Act qualification, and the lack of performance cannot in some manner be accommodated (an act of good faith not a requirement) then you can use improvement plans for the employee. If the improvement plans do not work then disciplinary measures can be taken. I know you probably do not want to do that but you have to be concerned with the company's interest.
Be certain you are not using, or any person in a controlling position, is not telling the employee that they are getting on in years, the work is too hard for them, we need new blood or anything that will become ADEA language that can be used to support a discrimination claim.
I'm not so certain you can 'assign' a retirement date. To my knowledge we can't in Virginia.