Cognitive decline will increasingly become a workplace concern because of three intersecting trends. First, the American population is aging. In 2019, 16.5 percent of the population, or fifty-four million people, were age sixty-five and over, and the number is expected to increase to seventy-eight million by 2025. Dementia is not uncommon among older adults, and by the age of eighty-five, between 25 and 50 percent of individuals suffer from this condition. Second, many individuals are postponing retirement and prolonging their working lives. For example, about a quarter of physicians are over sixty-five, as are 15 percent of attorneys. The average age of federal judges is sixty-nine. Third, a variety of technologies, such as positron emission tomography (“PET”) scans, spinal taps, genetic tests, and even blood tests now enable physicians to detect potential signs of dementia long before symptoms emerge. Employers may well be tempted to pursue these diagnostic tools because cognitive decline can cause a multitude of complex challenges in the workplace, threatening productivity, workplace morale, and public safety.
The question of how to handle cognitive decline in the workforce has received very limited attention in the legal literature. This Article strives to treat the subject in a balanced way, considering the interests and difficulties faced by all stakeholders: employers, workers, and the public. It examines and critiques a variety of strategies that employers could implement, including mandatory retirement ages, mandatory cognitive testing for older employees or all employees, testing for dementia biomarkers, and an approach of individualized assessment. It evaluates these approaches in light of the relevant federal laws that prohibit age, disability, and disparate impact discrimination and suggests necessary statutory revisions. The Article concludes with detailed recommendations to help employers, employees, and professional associations appropriately manage this very sensitive matter.
