‘Long COVID’ – Implications For Employers

What is Long COVID?

According to NHS guidance, most individuals contracting COVID-19 will make a full recovery within a few weeks, however, for some, that is not the case. Post-COVID-19 syndrome, otherwise known as ‘long COVID’, refers to symptoms lasting for more than four weeks. Common symptoms include extreme fatigue, chest pain or tightness, ‘brain fog’, dizziness, joint pain, changes to sense of smell or taste, depression and anxiety.

Research does suggest that certain groups within the population are more susceptible to long COVID than others. These include those admitted to hospital as a result of COVID-19, smokers, and those who are older and/or female.

Though long COVID is a relatively new medical condition, what is clear is that the condition and its symptoms certainly have the potential to affect an individual’s ability to work. This has led many employers to question how best to support employees suffering from long COVID and how to manage any related sickness absence.

Managing employees suffering from long COVID – advice to employers

Employees with long COVID may be signed off as unfit for work for an extended period or their sickness absence may be intermittent where an employee’s symptoms improve but then worsen again.

We would advise employers to approach any periods of sickness absence related to long COVID with an open mind and to be flexible depending on the needs of the employee in question. The starting point for employers will be to maintain communication and engagement with employees who are suffering from long COVID.

Employers may need to seek advice from their Occupational Health provider, or more specialist medical advice, to comment on the employee’s ability to fulfil their role, the likely duration of any absence and any modifications which may assist.

Employers should ask the employee how they feel they can be supported as they return to work. Adjustments should be considered such as flexible working, reduced hours, taking longer breaks, working from home where the remit of their role allows for that and/or a reduction in workload and/or the physical demands associated with the job.

Is long COVID a disability for the purposes of the Equality Act 2010?

The Equality Act 2010 offers protection for those in employment against discrimination and other prohibited conduct on the basis of a protected characteristic. The protected characteristic of most relevance in these circumstances is a disability.

In law, a disability is defined as a physical or mental impairment that has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities.

Earlier this year, the Trade Union Congress called for long COVID to be recognised as a “deemed disability” in law, meaning that sufferers would be automatically protected (i.e. there would be no need for employers (or the Employment Tribunal in the event of a claim being brought) to consider the effect of the condition on a person’s ability to carry out normal day-to-day activities or its duration. However, to date, that proposal has not been taken any further. Therefore, given that the current scientific evidence is that the effect and longevity of the condition vary significantly from individual to individual, each case will need to be assessed on its own merits.

Based on the known symptoms of long COVID, it is entirely possible for these to amount to physical or mental impairment in employment law terms. It also seems possible that such impairment could have a substantial adverse effect on an individual’s day-to-day activities (this is a fairly low threshold, with individuals merely being required to show that the effect is more than trivial). It is the third limb of the legal ‘test’ – the question of whether the substantial adverse effect is long-term – that is most likely to give rise to debate.

An impairment will be regarded as long-term if it has lasted, or is likely to last, 12 months or more. Research studies do refer to participants who continue to suffer from the condition more than seven months following diagnosis. So it is conceivable that this limb of the test could be satisfied, depending on the severity of the symptoms an individual is suffering. The real difficulty arises from the fact that research reports that the condition of individuals diagnosed with long COVID can drastically improve to the point where it appears that the individual has made a full recovery, but that same individual can then relapse and experience severe symptoms again in future.

Comment

Employers will need to be alert to the possibility that employees suffering from long COVID may be considered disabled in law and be mindful not to unlawfully discriminate against, victimise or harass employees on that basis.

Employers considering dismissing employees with long COVID because of their absence or their inability to do their job will need to follow a capability process and consider up-to-date medical evidence, as well as consider whether reasonable adjustments could be implemented to assist an employee in their work or with a return to work or the availability of any alternative roles.