By Sharona Hoffman
As the American population ages, employers must contend with the growing challenge of cognitive decline in the workplace.
Cognitive decline becomes more common as individuals age. The risk of Alzheimer’s disease doubles every five years after age 65, and almost one-third of people over 85 have the disease. And, as detailed in my book, Aging with a Plan: How a Little Thought Today Can Vastly Improve Your Tomorrow, the American population is aging. By 2034, about 77 million people will be seniors, accounting for 21% of U.S. residents.
Considered together, these trends substantiate concerns about the increasing prevalence of cognitive decline in the workplace. Recent research provides further support: when Yale New Haven Hospital tested clinicians on staff who were seventy and older, it found that almost 13% had significant cognitive deficits.
Older employees often bring a wealth of experience and highly refined skills to their jobs. They can therefore add great strength to the workforce. Yet, employees with cognitive decline can cause a multitude of complex challenges in the workplace. They can threaten workplace productivity, workforce morale, and even public safety.
How might employers address cognitive decline concerns? As I argue in my article “Cognitive Decline and the Workplace” (forthcoming in the Wake Forest Law Review), there are several options, but many are legally and ethically problematic.
Mandatory Retirement Policies
Employers may consider establishing mandatory retirement ages. But the Age Discrimination in Employment Act (ADEA) makes doing so illegal, with a few exceptions. Retirement mandates are permitted for certain public safety jobs, such as firefighters, law enforcement officers, and pilots. The courts have also determined that state judges can be required to retire at a particular age, and 32 states and the District of Columbia have implemented such a requirement.
The general ban on forced retirement is prudent. There is no reason to stop employees from working if they can do so safely and effectively. Moreover, many individuals need to continue working for financial reasons or will lose their sense of purpose and meaning in life without work.
Cognitive Testing Beginning at a Particular Age
Some employers, primarily health care providers, require employees to undergo cognitive testing beginning at a particular age (e.g., 70). While this approach may seem intuitively reasonable, it is unlawful. Testing older employees who have no job performance deficits but not younger ones violates the core principles of the ADEA.
It also violates the Americans with Disabilities Act (ADA). Under the ADA, employers may subject employees to testing only if it is job-related and consistent with business necessity. According to the Equal Employment Opportunity Commission, testing is permitted only if it is “triggered by evidence of current performance problems.”
Moreover, different jobs require different skills and cognition levels. No single cognitive test can determine the competency of all employees in all jobs. If employers were to establish a general testing policy, they may not have the expertise to select the appropriate testing tools, interpret test scores correctly, and determine which employees raise serious job performance worries.
Cognitive testing also raises race discrimination concerns because it may have a disparate impact on African American examinees in violation of Title VII of the Civil Rights Act of 1964. On average, African Americans attain lower scores on these tests than white test-takers. If employers subject low scoring employees to adverse consequences despite competent job performance, they may engage in unlawful race discrimination.
Cognitive Testing of All Employees
To avoid age discrimination, employers might test employees of all ages. This approach, however, is no less problematic than age-based testing. First, testing all employees would be expensive and cumbersome for employers. Second, it magnifies the ADA and Title VII concerns.
Alzheimer’s Disease Biomarker Testing
New technologies make it possible to detect potential signs of dementia even before symptoms emerge. For example, scientists have learned to use positron emission tomography (PET) scans, spinal taps, and blood tests to identify Alzheimer’s disease biomarkers. These tools may tempt employers to test workers for early signs of dementia or indications of future disease.
But subjecting employees to PET scans, spinal taps, or blood tests to identify dementia risks likewise violates the ADA’s medical examination provision. The ADA’s job-relatedness requirement means that examinations must relate to individuals’ current ability to perform their jobs, not to how their competencies might change in later years.
A ban on predictive testing of employees is particularly important because of a problematic statutory gap. The ADA does not prohibit discrimination against healthy individuals who are deemed at risk of future illness. It extends only to those who have current disabilities or records of past disabilities and to those who are wrongly regarded as having existing disabilities. Accordingly, as I have argued in a prior article, if employers learn through testing that workers are at risk of future dementia, the ADA leaves them at liberty to reject or fire the individuals.
Employers might be highly motivated to avoid employees who are vulnerable to future cognitive decline. Employers want to safeguard their profitability and avoid workers who could develop absenteeism and productivity problems and raise health insurance costs.
What Can Employers Lawfully Do?
Employers should evaluate each worker’s job performance at regular intervals. If assessments reveal job performance problems that suggest cognitive decline, testing is permitted. Indeed, it is important to determine if employees who are experiencing difficulties can continue to work safely and effectively. The cognitive tests selected, however, should be tailored to mental capacities relevant to the job in question.
Note that while the ADA prohibits testing that is not job-related for current employees, it permits employers to conduct any and all testing for incoming employees. In other words, testing of incoming workers is not limited by a job-relatedness requirement. The exception to this rule is genetic testing, which is prohibited by the Genetic Information Nondiscrimination Act.
If cognitive deficits are identified by testing, employers are legally bound to work with employees to try to find reasonable accommodations that facilitate performance of essential job tasks. These might include memory aids, changing work hours, or adjustment of work duties. Ideally, therefore, cognitive testing should help employees receive needed assistance and remain employed.
If reasonable accommodation is impossible, employers may reject or fire individuals with cognitive decline. The law does not require or encourage the retention of individuals who will be incompetent or unsafe workers. Indeed, separation may be in the best interest of the affected employee, coworkers, and those whom they serve. It may be the only responsible way to proceed.
Employers and policy makers can no longer ignore the issue of cognitive decline in the workplace. To begin to address it appropriately, I offer several recommendations.
The Law. The advent of predictive Alzheimer’s disease testing requires two changes to the ADA. First, the statute should be revised to prohibit discrimination based on predictions of future disabilities.
Second, the ADA’s medical examinations and inquiries provision should eliminate the puzzling distinction between preemployment and postemployment testing. Employers should never be authorized to conduct non-job-related testing, because they simply do not need information that is irrelevant to a workers’ existing job competencies.
Training. Employers should train supervisors and managers about proper job assessment and about cognitive decline. Officials should learn to identify job performance problems that suggest cognitive decline, to be sensitive in discussing the matter with employees, and to investigate effective reasonable accommodations. Most importantly, they should individually assess job performance and conduct only testing that is supported by evidence of work difficulties.
Wellness Programs. Workplace wellness programs could offer voluntary, confidential cognitive testing to older employees along with educational sessions about cognitive impairment. Short tests such as the Mini-Mental State Examination could reassure employees about their cognitive abilities or encourage them to pursue thorough testing with their doctors.
Professional Associations. Professional associations have a role to play as well. State bar associations have taken the lead in this area. They have instituted programs such as “learning to spot cognitive decline” and “interventions to gracefully guide lawyers toward retirement.” Medical, academic, and other professional associations should follow this precedent.
Cognitive decline is a complicated, emotional, and pressing workplace challenge for which there is no simple solution. What is clear is that employers, policy makers, and professional associations should think deeply about it. Now is the time to begin implementing lawful strategies to address this vital matter.
Sharona Hoffman is the Edgar A. Hahn Professor of Law, Professor of Bioethics, and Co-Director of Law-Medicine Center, Case Western Reserve University School of Law. She is the author of over 70 articles and book chapters about health law and civil rights issues. Her most recent book is the second edition of Aging with a Plan: How a Little Thought Today Can Vastly Improve Your Tomorrow (First Hill Books 2022). Professor Hoffman is a former Senior Trial Attorney at the Equal Employment Opportunity Commission, Houston District Office. For more information see https://sharonahoffman.com/.