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Long COVID and the Work Place

long covid and the workplace

23rd September, 2021

There is a still lot we don’t know about Long COVID and its prognosis which can make it difficult for employers to properly support staff with the condition and manage the potential impact on their workforce.

Here we set out some key considerations for employers:

Q1. What is post-COVID-19 syndrome or ‘Long COVID’?

At the date of publication, there is a lack of medical understanding and certainty around what constitutes Long COVID and why certain individuals continue to have adverse symptoms after contracting the virus in comparison to the majority who seem to fully recover after a few weeks.

According to the National Institute for Health and Care Excellence (NICE) and the NHS which has adopted this definition, Long COVID is “signs and symptoms that develop during or following an infection consistent with COVID-19 which continue for more than 12 weeks and are not explained by alternative diagnosis”.

There is no test to diagnose Long COVID for instead the condition is characterised by a common set of symptoms. The symptoms of long COVID greatly vary but the most common side effects are fatigue, post-exertional malaise (where health worsens after physical or mental exertion) and brain fog. Long COVID has drawn comparisons with ME, otherwise known as chronic fatigue syndrome, which is a post-viral condition diagnosed by a collection of unexplained symptoms including tiredness. Additionally, similarly to ME, Long COVID appears to be unpredictable in its impact as an individual can feel fine one day and then unwell the next.

Q2. Who does Long COVID affect?

Long COVID does not only affect the elderly and those with pre-existing medical conditions but can affect young and previously healthy individuals. Despite this, there is evidence to show that being older, overweight, female and having asthma are risk factors and that ethnic minorities are disproportionately impacted although there is debate in medical literature as to why this is the case.

The exact number of Long COVID suffers are unknown but findings from the ONS show that between 7 April 2021 to 13 June 2021, 6.2% of adults self-reported that they have experienced Long COVID since the start of the pandemic. The number of impacted individuals is smaller than previously feared but clearly this still impacts a considerable number of people in the UK and subsequently the workforce.

Q3. Can Long COVID be classed as a disability?

Whether or not Long COVID is classed as a disability has so far not been tested in the courts. However, disability-related cases are often fact-specific so the outcome would need to be assessed on a case-by-case basis and applied to the Equality Act 2010.

The Equality Act 2010 defines disability as:

  • a physical or mental impairment
  • which has a substantial adverse effect on a person’s ability to carry out normal day-to-day activities
  • and which is long-term – meaning that it has either lasted for 12 months, likely to last at least 12 months or likely to last the rest of a person’s life.

For a Long COVID sufferer to be classed as disabled they would need to meet each element of the test.

The first part of the test would clearly be met but whether an individual would meet the second and third requirements would depend on the factual circumstances of each case.  As we know, symptoms of Long COVID can vary greatly from milder cases such as loss of taste and shortness of breath to the more extreme symptoms such as extreme tiredness, organ failure and even depression and anxiety which would meet this hurdle.

The duration an individual suffers from Long COVID is also fact-specific, but it seems from media accounts that Long COVID is capable of lasting over 12 months which would meet the third requirement. It may be difficult to analyse whether Long COVID is likely to last at least 12 months as individuals report that the severity of their symptoms can increase and decrease over time. Whilst there is no legal authority on this, case law has shown that ME can be classed as a disability despite the variable symptoms which suggests Long COVID would be treated the same.

Q4. What employment risks should employers be aware of?

  1. Discrimination

Employers should be mindful that individuals with Long COVID may be recognised as disabled under the Equality Act 2010 depending on the duration and severity of their symptoms. This means that if an employee is put at a disadvantage or treated less favourably because of their disability then this may amount to disability discrimination and an employee can claim compensation for their alleged mistreatment, which is costly for an employer to defend and/or payout.

The Equality Act 2010 also protects individuals from discrimination arising out of a consequence of a disability. For example, if an employer penalises an employee because of their high sickness absence related to Long COVID then this could again amount to discrimination. ACAS advises employers to treat Long COVID as any other illness however it is important to be mindful that, unlike other illnesses, Long COVID is still a relatively new condition with variable symptoms, so it is prudent to exercise caution when dealing with sickness absences.

Women, the elderly and ethnic minorities have a higher probability of developing Long COVID which may put employers at risk of indirect discrimination claims if they have a policy, practice or criteria which inadvertently impacts them more than other groups.

Long COVID can be a freestanding condition or arise out of, or lead to, a connecting medical condition. In either case, employers should consider whether an individual’s medical condition would pass the Equality Act 2010 disability test and be afforded protection.

  1. Reasonable Adjustments

An employer has a duty under the Equality Act 2010 to make reasonable adjustments to premises or working practices to help disabled workers.

The symptoms of suffers with Long COVID are varied so it is likely to be hard in practice for employers to make informed decisions on what adjustments are likely to be the most appropriate to support affected staff. We recommend that employers err on the side of caution and take steps to find out what adjustments would be suitable by engaging with an occupational health provider where possible to understand what adjustments would be best suited to an individual’s job role.

Having a conversation with the affected individual about the types of support they may need is also recommended as they probably already have an idea of the sorts of adjustments that would be useful to support them. Examples of reasonable adjustments could be continued homeworking to reduce travel time, varying the working hours, access to employee assistance programmes/occupational therapists or adopting a phased return to work after a long-term sickness absence.

Often the cost of recruiting and training a new employee is more than the cost of allowing an employee time off and ensures the business retains the right talent so there is certainly a benefit to the business in making adjustments.

Q5. What are our recommendations to employers?

  • Be flexible when it comes to reasonable adjustments and seek advice from occupational health to better understand the condition and how to support the individual (please see Q4 for examples of reasonable adjustments).
  • Plan for higher absences in the workforce. The duration of Long COVID is currently unknown and an individual may be absent over a short period or it could be a chronic condition. Managers and HR should proactively manage higher absenteeism in the workforce and facilitate long term solutions to support the individual who may be considered disabled.
  • Build up Line Managers and the HR’s knowledge. Line Managers and HR are often the first points of contact if someone needs to discuss health concerns or a change or adjustment to their work or working hours. Line Managers and HR should be educated on how they can sensitively support sufferers of Long COVID and deal with cases under existing policies and procedures in a fair and non-discriminatory way.
  • Encourage open communication with affected employees if they are struggling. Employees with a problem should be encouraged to ask for help so the business can better support them. Line managers should schedule regular meetings to evaluate the adjustments in place and consider the need for increased support if their symptoms change over time.
  • Exercise caution when it comes to dismissal conversations. Chronic bouts of sickness or poor performance would be considered a capability issue and employers should take reasonable steps to investigate the true medical position and prospects of rehabilitation/ adjustments before deciding to go down a dismissal route (although this could present a challenge as there is a lack of medical certainty of prognosis as we discussed). If an employer does decide to go down this route, maintaining records will strengthen an employer’s ability to respond to any discrimination questions and defend potential claims. It is therefore important to keep a record of conversations, adjustments put in place and any detrimental affect an employee’s absences are having on the business so the employer can better defend its actions.

Contact us for help and advice.

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