As employers continue to adapt to the impact of staff having to self-isolate and with many being unable to work, we’ve seen an increase in enquiries from clients seeking our support on how best to manage those with post-Covid-19 syndrome, or what’s commonly known as “Long Covid”.
Here’s our guide to what you need to know, the risks to be aware of and actions that your business can take:
What is Long Covid?
Long Covid is a new illness, since the outbreak of COVID-19, that can impact an employee’s ability to work or result in long periods of absence.
The symptoms of Long Covid can affect different people in different ways, but include fatigue (or extreme tiredness), breathlessness, joint and muscle pain and “brain fog” along with the other common symptoms of COVID-19 (such as a cough or loss of taste or smell)
Some people have reported, after contracting COVID-19, that their symptoms have persisted for weeks or even months after their initial infection, which could consequentially affect their work and therefore experience a long-term absence of sickness.
Can Long Covid amount to a disability under the Equality Act 2010?
While not formally recognised as a disability, the effect Long Covid may have on a person’s ability to work may mean it should be considered as such.
Aside from the practical side of managing employee absence, employees with Long Covid could benefit from legal protection if their symptoms meet the legal definition of “disability” under the Equality Act 2010.
To be capable of amounting to a disability, the four key questions that need to be answered “yes” to, are:
- Does the person have a physical or mental impairment?
- Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
- Is that effect substantial?
- Is that effect long-term?
So, let’s look at each of these questions in turn.
Employees with Long Covid may be able to establish that they have a mental or physical impairment, depending on their symptoms.
The test for whether the impairment has a substantial effect on their ability to carry out normal day to day activities will depend on the facts of each case.
Essentially, if the impairment has a more than minor or trivial effect on the individual’s ability to carry out day-to-day tasks (i.e. shopping, focusing on tasks, exercise etc.), the employee is likely to be able to satisfy this part of the test.
The more challenging question to consider is whether the effect is long-term, which means it has lasted, or is likely to last, 12 months. This is problematic as Long Covid is a new illness and not fully understood. Whether the individual can satisfy this part of the test will depend on the facts, and how long they have had the illness for.
What does this mean for employers?
If an employee has symptoms of Long Covid, employers should be careful to ensure that they are not placed at a disadvantage, given the risk that the illness could constitute a disability.
If a “disability”, then this means that the employer has a duty to consider and make reasonable adjustments to the workplace, including to how the employee works, changes to their hours and consider a phased return to work.
Employers should be mindful when considering dismissing employees with Long Covid because of their absence or their inability to do their job. They will need to follow a full and fair capability process and consider up to date medical evidence. As failing to do so, is likely to lead to claims for unfair dismissal and/or disability discrimination being brought by the affected employee.
Actions for employers to take
- Cases of Long Covid should not be treated any differently to normal sickness absence. You should engage in your usual absence management procedures and consider whether these need to be updated.
- Always obtain the necessary medical evidence, from Occupational Health, doctors or specialists before taking any action, including around any “adjustments” to the workplace – as this will also help you to determine whether the employee is likely to be disabled or not.
- If an employee is well enough to return to work, the employer should ascertain what symptoms the employee is experiencing and the effect this may have on their ability to work. Consideration, such as a phased return to work or homeworking, should be given to what adjustments could be put in place to help them return.
- Employees with Long Covid should receive sick pay in the usual way, and care should be taken to ensure that managers keep in regular contact with them. Also assist employees to access health insurance benefits where appropriate.
Please note that the above does not constitute advice from the Berwins Employment Team and is for information only. If you require any specific advice or support on this area or any other COVID-19-related employment issues, please call Mike Patterson on 01423 542778, or email firstname.lastname@example.org