Thu 02 Dec 2021

“Long COVID” - tips for employers

NHS guidance states that many people with COVID-19 will feel better within a few days or weeks and most will make a full recovery within 12 weeks. Does long COVID qualify as a protected characteristic under the Equality Act 2010?

“Long COVID” - tips for employers

What is Long COVID?

NHS guidance states that many people with COVID-19 will feel better within a few days or weeks and most will make a full recovery within 12 weeks. However, in some cases, symptoms can last significantly longer. Those still suffering from the effects of COVID-19 after 12 weeks are considered to have “long COVID”.

The NHS has defined long COVID as a “multi system condition” with a wide span of symptoms including fatigue, breathlessness, chough, chest pain, heart palpitations, fever, headache, muscle pain and loss of taste and smell. Alongside physical symptoms, the NHS recognises several psychological symptoms such as depression, anxiety, post-traumatic stress disorder (PTSD) and ‘brain fog’ or cognitive impairment.

The Office of National Statistics has also carried out research into the prevalence of long COVID, and have estimated that:

  • Around 1 in 5 respondents testing positive for COVID-19 exhibit symptoms for a period of 5 weeks or longer; and
  • Around 1 in 10 respondents testing positive for COVID-19 exhibit symptoms for a period of 12 weeks or longer.

These statistics highlight the vast number of individuals who may be suffering with long covid and therefore the importance of employers understanding how long COVID may affect their employees and their ability to complete their roles.

Does long COVID qualify as a protected characteristic under the Equality Act 2010?

The Equality Act 2010 aims to protect those in employment against discrimination in the workplace. Included as one of the nine protected characteristics of the Equality Act 2010 is disability.

Under the Equality Act 2010, a person has a disability if a) there is a physical or mental impairment and b) the impairment has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities. “Long term” means that the substantial adverse impact has lasted for 12 months, or is likely to last 12 months and to qualify as “substantial” the effect must only be “more than minor or trivial.”

The question of whether long COVID satisfies these tests and will be classed as a disability under the Equality Act remains to be seen as the condition and its effects are not yet fully understood and will of course depend on the specific circumstances of each case. In June 2021, The TUC (Trades Union Congress) surveyed more than 3,500 workers on their experiences of long covid. The survey revealed that, of those surveyed, 29% have experienced symptoms lasting longer than 12 months, 72% experienced brain fog and 62% had difficulty concentrating. These statistics suggest the test for disability may well be satisfied. While physical symptoms such as fatigue and coughing may prevent an employee from returning to work entirely, psychological symptoms such as brain fog and difficulty concentrating may limit an employee’s ability to carry out their day-to-day tasks. This means any employer discriminating against or treating an individual with long covid unfavourably may expose themselves to a disability discrimination claim.

It is important to note that the symptoms experienced and the severity of such symptoms vary vastly from one individual to the next, meaning the question of whether long covid is a disability under the 2010 Act cannot simply be answered with the yes, no dichotomy. Instead, each case must be assessed on its own merits.

Tips for employers

Employers must ensure no members of staff are treated unfavourably because of something arising in consequence of long-COVID as failure to do so could result in the organisation finding itself on the wrong side of an employment tribunal which may prove costly in terms of time, money and reputation.

Alongside this, employers must also be aware that failure to act can also lead to disability discrimination. By law, an employer must consider making reasonable adjustments when:

  • They know, or could be expected to know, an employee has a disability
  • An employee with a disability asks for adjustments
  • An employee with a disability is having difficulty with any part of their job
  • An employee’s absence record, sickness record or delay in returning to work is because of or linked to their disability.

The Advisory, Conciliation and Arbitration Service, known as ACAS, is an independent public body who provide impartial advice on workplace rights and rules to both employees and employers.  ACAS suggest that instead of trying to determine if an employee’s condition is a disability, it is more appropriate and effective to focus on the reasonable adjustments that can be made to accommodate the employee.

While an employee is off sick due to symptoms of long covid, ACAS recommends that employers should:

  • Agree with the employee how and when to make contact during any absence;
  • Make sure the employee’s work is covered and shared out appropriately while during their absence; and
  • Discuss with the employee what support is available to them as they return to work where and when possible.

Once ready to return to work ACAS recommends the employee and their employer discuss the following:

  • The employee undertaking an occupational health assessment;
  • Potential changes that may be made to the workplace or the way in which the employee works such as adjusting working hours;
  • A phased return to work; and
  • What the employee wants to tell others at work about their illness.

In their advice, ACAS also note that employers should ensure that they have considered all options before resorting to a capability procedure.

Employers must be alert to the possibility of long COVID affecting their employees and the possibility of the condition being classified as a disability under the Equality Act. Employers should consider how they can support staff members affected by the condition and sufficiently train/upskill their managers not to discriminate against any members of staff on that basis. Consideration should be given as to whether reasonable adjustments are required and how best employees can be supported through their return to work.

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