Managing Long Covid In The Workplace
Key Contact: Claire Knowles
Author: Adam McGlynn
Long-term illness is one of the more challenging HR issues to manage, especially when the employee’s illness may qualify as a disability under the Equality Act 2010. There is usually medical understanding of the illness and precedent cases that HR professionals can draw on when managing the situation, ‘Long Covid’, however, is different. Given the novelty of the condition, there are many unknowns for HR to navigate. Perhaps the largest unknown is whether Long Covid might amount to a disability.
Pending further clarity on the condition, the Equality and Human Rights Commission has recently suggested that organisations err on the side of caution and treat employees suffering from the illness as if they have a disability. Employers may however be reluctant to adopt this approach given the demands that this would place on them.
What is Long Covid?
The NHS defines Long Covid as “signs and symptoms that develop during or following an infection consistent with COVID-19 that continue for more than 12 weeks and are not explained by an alternative diagnosis.”. Symptoms can be wide-ranging but commonly include fatigue, problems with memory and concentration (“brain fog”), shortness of breath, dizziness, anxiety, and depression. The Office for National Statistics has estimated that more than 1 million people in Britain have suffered or are currently suffering from Long Covid.
Is Long Covid a disability?
Some conditions are automatically deemed a disability by law, such as, for example, blindness and cancer. Long Covid is not a listed ‘deemed’ disability and despite the TUC calling for legislative reform to make it one, so far there’s no suggestion that the Government will make any changes here. If Long Covid is to be regarded as a disability, it will therefore need to satisfy the general definition contained within the Equality Act 2010.
The Equality Act defines a disability as “a physical or mental impairment” that has a “substantial and long-term adverse effect” on a person’s ability to “carry out normal day-to-day activities”. “Long-term” means that the condition has lasted, or is likely to last, at least 12 months. Some of the symptoms of long Covid, including “brain fog” and fatigue, can have a significant impact on someone’s life and there are reported cases of the condition lasting more than 12 months. It is therefore clear that Long Covid could amount to a disability, but whether it does in a given case will depend on how it affects the individual concerned and for how long. In other words, there will never be a uniform answer; Long Covid might amount to a disability for one sufferer but not for another.
The definition of disability includes “is likely to last at least 12 months”. This means that even if someone hasn’t been suffering from Long Covid for a year, they may be considered legally disabled if it is “likely” that the condition will last that long. This may be particularly difficult to determine in the early stages of experiencing Covid symptoms, however, may become more apparent overtime depending on the length of time that the symptoms persist, the changing nature of symptom severity, and the presence of extraneous variables.
What does this mean for managing employees suffering from Long Covid?
Failure to make reasonable adjustments will put employers at risk of disability discrimination claims, especially if the employee’s Long Covid has a substantial effect on their working life and persists for more than 12 months. More cautious employers may, therefore, want to act as if the employee has a qualifying disability, and offer reasonable adjustments accordingly. Adopting this as a blanket approach may create additional work for HR departments and so, other bodies suggest a more balanced approach. ACAS’, for example, suggests that employers should treat Long Covid as they would any other illness.
Overall, there is not a one size fits all approach as much will depend on the employee’s role, the symptoms they are experiencing, and their recovery rate over time. We would recommend that, businesses who have employees experiencing Long Covid seek legal advice if symptoms persist and/or affect daily working activities. Legal advice is particularly important if the performance of such individual’s deteriorates, and/or the business is considering initiating capability procedures.
If you require any assistance managing an employee who’s Long Covid, or other illness, is affecting their performance, please contact the Acuity Employment team.