Currently in the UK an estimated 1 in 10 people who have contracted Covid-19 will go on to experience further debilitating symptoms over 12 weeks after the initial infection.
Commonly known as 'long Covid', there is very little known about why this condition only affects some, or for that matter the extent to which it affects them.
What we do know is that long Covid can seriously diminish the quality of life of those suffering from it, with symptoms varying in severity on a day-to-day basis, much like a chronic illness.
This can make the performance of even the most basic, everyday tasks a challenge, and leaves huge question marks as to a sufferer’s ability to work.
This is likely to be at the forefront of many employers’ minds as the country begins to make plans to welcome staff back into the workplace following a lengthy absence, whether that be due to furlough or flexible working.
But with more than 1m people reported to be experiencing long Covid symptoms in the month leading up to March 2021, guidance is needed with regards to how long Covid is classified and what the key considerations will be for employees and employers alike.
How do we classify a disability?
While there is no universally accepted definition of long Covid, the NHS notes that sufferers often experience a broad range of symptoms for up to six months after initial infection, including chest and joint pain, extreme fatigue, shortness of breath, memory problems, depression and a high temperature; although exact time frames are as yet unquantifiable given the unprecedented nature of the illness.
What is apparent is that long-Covid will have a significant effect on an individual’s physical and mental wellbeing, and that employers should be prepared for the fact that many employees experiencing symptoms are likely to be classed as disabled for the purpose of employment law.
Those with a “physical or mental impairment” that has a “substantial” and “long-term” adverse effect on their ability to carry out day-to-day activities will be disabled under the Equality Act 2010. It is already apparent that long Covid has the potential to be an impairment that has a substantial effect on an individual’s day-to-day activities.
On the other hand, “long-term” refers to an impairment that has lasted or will last for at least 12 months or is likely to come and go over time. Not enough time has passed, or research undertaken, for it to be conclusively determined that long Covid will regularly be a long-term impairment. However, it appears there will be individual cases where this is a clear possibility.
It therefore seems logical that those afflicted by long Covid be treated as if they are potentially disabled for employment law purposes. This will not be true in all cases, however, and it will likely depend on individual employees and their specific circumstances, particularly the severity of their symptoms and the length of time they are likely to suffer with those symptoms.
If an employee is indeed deemed to be disabled then it is the responsibility of the employer to ensure it acts appropriately and that the employee is not being placed at a disadvantage in the workplace. If the employee is experiencing a disadvantage, perhaps unable to work a full-time working week or feeling easily exhausted, then it will be the responsibility of the employer to make reasonable adjustments to facilitate an employee’s return to work.
Those found to not be doing so may be in breach of discrimination legislation and could face costly claims in an employment tribunal.
However, as there are still so many unknown factors surrounding long Covid and its long-term effects on the human body, employers are unlikely to receive any conclusive answer about whether those suffering from long Covid are actually disabled.
The conciliation service Acas is therefore recommending employers shift their focus away from whether long Covid is, in fact, a disability, and concentrate instead on managing potential absences, or making reasonable adjustments so that those with the condition will be able to continue in their work.
Working practices
From what little we know about long Covid, it can affect each individual very differently. We can therefore be relatively sure employers will need to prepare themselves to tackle short, intermittent absences as well as prolonged ones. These absences should be treated no differently than if they were the result of any other chronic illness.
As an employer, your priority should be to discuss how you can best support your employee’s return to work when they are fit to do so. The steps to be taken by the employer will depend on the symptoms and difficulties their employee is experiencing.
For example, this might be looking at different working hours, more regular breaks or a phased return to work. However, employers will need to ensure that any changes being considered should only be implemented with the consent of the employee and, if possible, with the support of medical or occupational health advice.
If there are any genuine concerns as to whether the employee concerned has the capacity to return to work at all, it may be appropriate to begin a formal capability procedure, which could result in the termination of their employment. However, this should always be the last resort after all other options have been explored.
How employers manage an employee’s absence and maintain good employee relations despite potential ongoing absences is likely to differ depending on the circumstances. Employers will need to give consideration to additional actions they can take, including:
- Agreeing when and how contact should be made during the absence;
- Deciding how details of the illness and the employee’s wellbeing are communicated to the wider team;
- Ongoing reviews of the employee’s condition.
Although the past year has altered the ways in which a management team interacts with its workforce, the emerging situation with long Covid should be treated with the same level of agility and common sense that most businesses have now become accustomed to. Taking a pragmatic and fluid approach at this point could encourage a smoother return to the workplace, and result in better employee relationships overall.
Given the unique circumstances of every individual situation, if you are in any doubt about matters concerning your workforce, seek advice from an experienced employment law team, which can assess the situation for you, guide you on the appropriate steps to take and ensure you do not make a potentially costly error.
Anna Bithrey is a solicitor in the employment law team at law firm Taylor Walton.
