You’re growing older as gracefully as you can, but your work has been slipping and the boss is asking questions about it in your performance review.
If you’re like most people you’ll be tempted to deny that age could be a factor in your effectiveness as an employee. But a Toronto lawyer advises that’s the opposite of what older employees should do if they start feeling the weight of time.
“Don’t be in denial. Come right out with it. Admit that the fact you’re getting older has been having some effect on your performance,” David Whitten, a partner at employment law firm of Whitten & Lublin said in an interview.
It’s an issue that’s arising more frequently now that mandatory retirement at 65 has been eliminated in most workplaces, said Mike Cuma, a partner at human resources consultancy Legacy Bowes Group in Winnipeg. “The pressure is likely to grow on older employees to move on if they can’t keep up with the increasing pace of change in workplaces.”
“People will say just because workers are getting older that’s not a reason that they can’t be effective. That’s true, and we have 80-year-olds running marathons, but it’s also true that most older people have more health issues as they get older. Employers are noticing the burgeoning cost of drug and medical benefits and increased sick time of older employees,” Mr. Cuma said.
If veteran employees don’t leave voluntarily, employers might turn to performance management to move older workers out the door, Mr. Whitten said. “It’s lawful for employers to point to deficient work and offer an ultimatum: a choice between a rigorous performance improvement program or taking a graceful exit,” and a majority end up taking a severance.
But employees faced with that choice have another option, he said. “There’s another component of age discrimination law: an employer has an obligation under all provincial human rights codes to accommodate age-related infirmities in the workplace.”
So, counterintuitive as it may seem to acknowledge you’re slowing down, “you should hold up your hand before the performance review if you know that your performance has been suffering. Bring that up with your manager or human resources and ask for assistance,” Mr. Whitten advised.
At that point, an employer is legally obligated to go through a review of how they can accommodate an employee’s age-related condition, he said.
Under provincial human rights codes, for example, “an employer can’t just say that your computer skills aren’t up-to-date and they can’t afford to send you to a training course. They have to prove that they can’t accommodate you in some other role that doesn’t require computer use, or they have to prove that the cost of retraining is prohibitively expensive,” Mr. Whitten said.
Many times, employers offer to shift an employee to a less-demanding assignment. But workers also have rights to object if employers want to move them to something they don’t want to do, he said.
The accommodation has to be reasonable and not punitive. “There has to be regard to your existing job and skills. There has to be ‘rational link’ to the changes. The employer has to prove that it is not designed to force an employee to quit because it isn’t possible to do the new job successfully,” Mr. Whitten said.
“It doesn’t mean that the person has to accept being shut up in a tiny room doing something radically different from what they’ve been doing. It can’t be something that you’ve never done before and aren’t expected to be able to do successfully.”
At the same time, employees must also be willing to co-operate with the employer, he cautioned. “If your employer is reaching out and trying to retrain you, it shouldn’t be looked at as nefarious. It could be your employer is earnestly trying to meet the legal obligation to accommodate you.”
Older workers should do what they can to keep productive because employers will want to retain seasoned staff who can continue to contribute, said Jan Hein Bax, president of recruiter Randstad Canada.
“I always find that a company will do what it can to keep employees as long as they’re adding value to the company. As an employee, your mind should be on ways that you are effective and helping grow the business,” Mr. Bax said.
He also has advice for employers. “It’s a two-way street: What are you willing to give to help keep your oldest and most seasoned employees who are eager to stay on the job and contribute effectively?”
Accommodation measures could include flexible work schedules and part-time work options.
There’s no reason most people can’t continue to be productive into their 70s or beyond, he said. “Maybe if you’ve been logging wood for 30 years, your body can’t take more of a strain. But most Canadians are working in an environment that is not physically demanding.”
The Canadian Human Rights Commission is keeping an eye out for employers that try to push older employees out the door.
The federal Human Rights Act was amended last December to eliminate mandatory retirement of federally regulated employees, but the law provided a one-year transition period before the change goes into effect.
The commission has received inquiries about the potential for “employers seeking to take advantage of the transition period to force employees to retire before they are ready to,” the agency said in a release this week.
“While there is no evidence that this is taking place, the commission believes it is prudent to caution any employer that might be considering such action to think again,” it said.
‘‘The transition period should not be viewed as a license to force aging workers out the door,” said acting chief commissioner David Langtry. “Forcing someone to retire because of their age clearly contradicts Parliament’s intent, even if a defence in law still appears to be available,” he said.
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