The data is clear – there is a trend toward an aging workforce in Canada.
According to Statistics Canada, the average age of retirement increased by more than four years between 1998 (60.9 years) and 2023 (65.1 years). This statistic has a number of implications for employers.
MLT Aikins 2024 Saskatchewan Labour Update will outline the issues that employers face when managing an aging workplace and include a discussion of case law examples involving challenging issues that arise in an aging workplace. The Labour Update will take place on May 8 in Regina and May 14 in Saskatoon and virtually.
Here, we address some considerations for employers in managing an aging workforce.
Age discrimination
Age discrimination can occur at any stage of employment, from the hiring process to the termination of employment. It can occur during the course of employment, for example, in an employer’s decision to promote or train certain employees or in implementing certain policies that may result in the differential treatment of employees of a certain age. If there is a nexus between an employer’s decision that directly or indirectly impacts an employee due to their age, the decision could be considered discriminatory.
Accommodating elderly workers
Where an employee has restrictions that are age related, an employer will have a duty to accommodate those restrictions up to the point of undue hardship. An example of an age-related restriction could be a physical restriction that the employee develops as they age, such as an employee’s inability to lift items above a certain weight. The process for accommodating an elderly employee’s limitations and restrictions involves the same considerations an employer faces when accommodating any other employee. This means that each accommodation must be assessed on a case-by-case basis, taking into consideration the unique facts of that particular employee’s circumstances and workplace.
Mandatory retirement and early retirement incentives
Employers must consider how human rights obligations intersect with mandated retirement from employment at a specified age given that “age” is a prohibited ground of discrimination under Canadian human rights statutes. Age-based mandatory retirement may be justified as a bona fide occupational requirement (“BFOR”) under certain circumstances. Mandatory retirement is distinguishable from an early retirement incentive. When properly offered and executed, early retirement incentives do not equate to age discrimination.
Workplace rules and practices continue to evolve at a rapid pace – and so do the legal risks and obligations facing employers. From dealing with harassment in the workplace to accommodation requests and recruitment and retention issues, you need to be aware of the latest developments in labour and employment law. This in-person and virtual seminar will inform you of the latest workplace laws and trends. Join us to learn how to mitigate your legal risks while maintaining a productive workplace.
Note: This article is of a general nature only and is not exhaustive of all possible regulatory requirements, legal rights, or remedies. Laws may change over time and should be interpreted only in the context of particular circumstances. These materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.