The Implications of Long COVID
Millions of people have contracted COVID-19 during the pandemic. Well over 100,000 have sadly died, but while many others have made a full recovery from the virus, the NHS reports a significant number who have experienced lasting symptoms, including:
shortness of breath
chest pain or tightness
problems with memory and concentration
pins and needles
depression and anxiety
feeling sick, diarrhoea, stomach aches, loss of appetite
a high temperature, cough, headaches, sore throat, changes to sense of smell or taste
These long-term after-effects of COVID-19 are being referred to by a number of names, but the most common name used is Long COVID.
In the early stages of the pandemic, data on those contracting the virus and dying from it seemed to suggest that it was predominantly affecting the elderly and those with underlying health conditions. However, Long COVID has been reported to affect young, active, healthy people, and this will begin to have an effect on both employees and their employers.
In December 2020, the Office for National Statistics said that an estimated 20% of people testing positive for COVID-19 exhibit symptoms for five weeks or longer, with one in 10 exhibiting symptoms for 12 weeks or longer.
If a person does start to show symptoms of Long COVID, and these symptoms endure for any length of time, they may be classed as ‘disabled’ under the Equality Act and therefore be protected from discrimination.
Is Long COVID a disability under the Equality Act?
Section 6 of the Equality Act (Disability) says:
(1) A person has a disability if—
(a) they have a physical or mental impairment, and
(b)the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
It is likely that people suffering from Long COVID would be able to prove that their condition has a “substantial…adverse effect” on their ability to carry out normal day-to-day activities, given the reports by some sufferers on the effects of their condition. However, where things become less clear is in the use of the phrase “long-term”.
Schedule 1 of the Equality Act (Determination of Disability) says that a condition is “long term” if:
(a) it has lasted for at least 12 months,
(b) it is likely to last for at least 12 months, or
(c) it is likely to last for the rest of the life of the person affected.
Of course, at present, it has only just been 12 months since the start of the pandemic (the first UK cases were registered at the end of January 2020), and those who are suffering from Long COVID will not be able to evidence 12 months of symptoms until much later, depending on the date on which they contracted the virus.
Although for many, the symptoms of Long COVID have lasted for weeks if not months, there is no way of knowing whether they will continue to do so, or if they will fade away over time. There is simply not enough information available for a medical prognosis to be made at present.
Given this lack of available data, it is likely that any cases that make it to an employment tribunal will be judged on the specific facts rather than the medical assessment of Long COVID as it stands at that particular point.
However, employers would be wise to plan for an eventual outcome of tribunal claims that define Long COVID as a disability, and bear in mind that they are obliged under the Equality Act, to consider what, if any, adjustments can reasonably be made to alleviate any disadvantage suffered by disabled individuals in the workplace.
Practical problems for employers
The symptoms of Long COVID are not experienced by sufferers at a consistent level all the time. This could be problematic for employers who are trying to plan staffing levels and cover if an employee can be fit for work on Monday and laid low by their symptoms on Tuesday.
Long COVID sufferers may experience long periods of sickness absence and will need to be treated in the same way as other employees on long-term sickness absence. This will include entitlement to company and statutory sick pay.
What can be done?
The employer needs to speak to the employee as soon as it becomes clear there is a problem. Reasonable adjustments could be made to help with their problems. Those adjustments could include a phased return to work after the initial sickness absence ends, adjusting work hours and the types of work they are doing, letting them continue to work from home (if this is practical) and giving them access to occupational health and employee assistance programmes.
The employer can take a proactive approach to managing absence. They could look at why the employee is absent and whether there is a pattern to their absence (either intermittent or long-term) that could form the basis of a revised working schedule. Again, this will involve communicating with the employee so that they can share their experiences and feel that they are being taken seriously.