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The Post Mandatory Retirement Era

After decades of having a mandatory retirement age in every jurisdiction in Canada the tables are now turned with every province and territory having moved to abolish mandatory retirement. The only exception is in the federal sector where federal law still recognizes a "normal age of retirement" for certain positions. Court cases involving the federal sector are now in the appeal process and it is highly likely that what we once took for granted may well be a thing of the past.

Brian W. Pascal
Mandatory retirement grew in Canada along with the development of public and private pension plans. The public programs like Old Age Security and the Quebec Pension Plan stipulated that benefits would be paid beginning at age 65. Private pension plans copied this model to integrate benefits and by the 1970's 65 had become the "normal" age of retirement. But in face of numerous cases of age discrimination launched in the 1990's brought an end to age 65 as the magic retirement age except in some occupations where there were bona fide requirements that prevented an employee from working past that age.

These developments have certainly affected how both employees and employers look at retirement and for employers in particular it raises some challenges and opportunities. On the opportunity side it can allow employers to maintain key employees past 65 to ensure continuity of operations and ensure that corporate memory is retained. On the downside it may not be possible to ease less productive employees out the door at age 65.

Even with the legislative bars on mandatory retirement, employers can still adopt a "normal" retirement age policy. This can provide a reference point for discussions with employees about their future plans with the employer and can be used by the employer to assist in succession planning. In the absence of a mandatory retirement age this might lead to further discussions about a reduced work week or other flexible working relationships that could assist in the transition to retirement.

Once an employee turns 65 there are a few other issues that come into play. They include the need to consider such items as bonuses and productivity incentives, employee benefits and the possible need to accommodate older employees in the workplace. With regard to bonuses based on productivity, employers will need to review their policies in order to ensure that older employees are not discriminated against if the performance measurements depend on physical requirements like speed or physical strength. Every attempt must be made to ensure that an older worker does not get treated differently because of age or physical impairment.

Employee benefits are another area that will require an employer to review and revamp their policies to ensure that older workers are not penalized simply because of their age. There are a few exceptions to this basic rule when it comes to life insurance and long-term disability plans. Both of these areas are regulated under provincial law and many such plans have clauses that kick in at age 65 to reduce or limit coverage to older workers.

Finally there is the question of the duty to accommodate older employees in the workplace. There may be cases where employers are asked to and must provide accommodation to older workers based on an identifiable disability that is normally associated with aging. This might include heart disease, mobility impairments and even Alzheimer's disease. Other examples that might require consideration of accommodation on behalf of the employer include what we normally associate with the aging process like reduced physical strength, lack of stamina or fatigue. As with other cases of duty to accommodate the onus is on the employer to provide accommodation up to the point of undue hardship to the organization.

In all cases of requests for accommodation for older workers, it is important to conduct an individual assessment. None of us age or deteriorate at the same rate and one person can manage a full workload even after heart surgery while another might require special and specific accommodation in order to maintain a productive pace at work. The employer must seriously consider these requests as you would consider any other request for accommodation but if it reaches a point where an employee can no longer produce at a reasonable level, even with the accommodation, then it may be time to ask that person to retire or be dismissed with cause.

These are just some of the issues that employers will have to consider as we move further into the post mandatory retirement age. There will be others that we haven't thought of yet but good managers will find a way to make the best out of this situation and to ensure that all workers get the opportunity to make a contribution to their organization for as long as is physically possible.


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