It is widely known that the vast majority of those who are unfortunate enough to contract COVID-19 go on to make a full recovery, especially as the vaccine roll-out has proven successful at drastically lowering the number of hospitalisations.
There are however some individuals who continue to suffer from symptoms after the initial infection has gone, to varying degrees and for varying amounts of time. This is known as “post-COVID-19 syndrome” or more commonly referred to as “long-COVID.”
What is long-COVID and what are the main symptoms?
Long-COVID has been defined as “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 an alternative diagnosis”. Reports suggest that as of June 2021, around 960,000 people in the UK (being 1.5% of the population) were experiencing the tell-tale symptoms which vary from person to person, which may include extreme tiredness, chest pain, problems with memory and concentration, insomnia and dizziness amongst various other symptoms.
Given the recent increase in infection rates from the Delta Variant, the likelihood of employers coming across cases of long-COVID within their workforce is increasing and they should be prepared with the correct knowledge to deal effectively should the need arise. This can be notoriously difficult with long-COVID as there is still much debate into the condition and issues with prognosis.
Is long-COVID classed as a disability under the Equality Act 2010 (EA)?
Employers should be aware that the EA prohibits discrimination in respect of various protected characteristics, including disability. A disability is defined in Section 6 of the Act as a physical or mental impairment, which has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities. Within this definition, substantial means “more than minor or trivial” and the disability must be likely to last/has lasted a period of 12 months or more to be classed as long-term.
It is difficult to establish whether or not a certain individual suffering from long-COVID would fall under this definition and benefit from the statutory protections afforded by the EA, as we know that the severity of symptoms and length they subsist can vary drastically from person to person. It is unlikely that we will get a “one-size fits all” approach here and every case will need to be assessed individually.
It is likely that we will shortly see Employment Tribunal decisions trickling down, the backlog dealing with cases of long-COVID which will hopefully provide some further guidance, but in the meantime employers should proceed with caution by obtaining medical advice, consulting with the employee in question and providing any reasonable adjustments necessary to avoid any potential disability discrimination claims if there are any doubts whatsoever that the employee may be classed as disabled.
Various organisations such as Trade Union Congress have recently called for long-COVID to be automatically recognised as a disability to prevent “massive discrimination” after publishing their findings of an in-depth report on workers’ experiences of long-COVID during the pandemic. From the 3,500 responses, 29% of workers symptoms lasted longer than a year and a clear majority had experienced the side effects of ‘brain fog’, shortness of breath, concentration issues and memory problems. Over half of respondents also said that they had experienced some form of discrimination or disadvantage at work due to the condition.
How should employers deal with staff suffering from long-COVID?
Employers are under a statutory obligation to provide suitable reasonable adjustments when faced with an employee suffering from a disability under the EA. Recent guidance by ACAS however has urged employers not to concentrate on trying to work out if an employee’s particular condition amounts to a disability, but to focus on the reasonable adjustments they can make to help the employee return to work. In light of the lack of certainty relating to long-COVID and until further statutory or tribunal guidance is available, this is certainly the most prudent approach to take.
There is also research indicating that long-COVID has been found to more severely effect older people, ethnic minorities and women – and therefore it is also crucial that employers avoid other types of indirect discrimination by placing these groups at a disadvantage to others in the way they are treated.
Other top-tips for employers include:
- Ensuring that HR and line-managers are aware of the condition and key symptoms so that they are properly supported from the outset;
- Refer employees to occupational health for prognosis and advice as to what adjustments could be made to support them;
- Remain open minded and flexible when it comes to considering and implementing any such adjustments to retain talent within the business and avoid any potential constructive unfair dismissal claims;
- Seek advice early if entering into dismissal conversation on the grounds of ill-health if it is not possible for the individual to return to work. The risks are high due to the lack of knowledge and existing case law and so advice at an early stage is key.
If you have any questions or concerns, or perhaps are dealing with an employee who has been diagnosed with long-COVID and would like a confidential discussion, please contact Burnetts’ Employment Law & HR team at firstname.lastname@example.org or 01228552222.