It is increasingly apparent that Post-COVID Syndrome (better known as “long COVID”) is becoming a topical issue for employers to navigate. In recent data published, it has been estimated that over 1 million people in Britain are suffering from or have suffered from long COVID. In light of this, we anticipate that it is likely to remain an evolving and interesting area of employment law.
This blog outlines what long COVID is and whether it could constitute a disability for the purposes of the Equality Act 2010. We have also set out some practical guidance and key steps for employers to implement.
The National Institute for Health and Care Excellence (NICE), has defined post-COVID syndrome as “signs and symptoms that develop during or after an infection consistent with COVID-19, continue for more than 12 weeks and are not explained by an alternative diagnosis.”
This is a broad definition and evidence has shown that the side effects of COVID-19 and recovery period can vary widely between individuals. Some individuals have made a speedy return to full health with few reported side effects. For others, the symptoms can be far more protracted and significant.
Whilst there isn’t a conclusive list of symptoms, commonly reported symptoms include shortness of breath, extreme tiredness, muscle pains and aches, problems with memory and concentration (“Brain Fog”) ongoing coughs, depression and diarrhoea. However, the reported symptoms can also extend to cases of heart damage and even organ damage.
The Equality Act 2010 defines disability as a:
“physical or mental impairment that has a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities”.
Given how recent COVID-19 is, there have not yet been any tribunal cases which have focused on long COVID. In order to establish whether long COVID can constitute a disability, it requires a closer examination of the above legal definition.
The first step is to identify whether there is a “physical or mental impairment”. Case law has shown that an individual does not need a formal medical diagnosis in order to prove disability. Instead, the tribunal will consider the effect of the impairment upon an individual’s day-to day- activities.
As noted above, there are a wide range of symptoms of long COVID, including both physical and mental effects. Some of the commonly experienced symptoms are breathlessness and extreme tiredness. It is likely that symptoms of this nature would impact upon the day to day tasks carried out by an individual.
The tribunal will then consider whether the effect of such an impairment is ‘substantial’. This will depend on the individual in question and the specific side effects experienced. Some individuals have reported a notable ongoing deterioration in their fitness levels or lifestyle after contracting COVID-19. In other cases, the ongoing side effects may be more subtle and difficult to precisely detect.
The assessment of whether an adverse effect is substantial will turn on the facts of the case and the available medical evidence. Studies have suggested that individuals suffering with long COVID are more likely to suffer from mental health issues. This can, in turn, impact upon their day to day activities. A tribunal would consider the range of symptoms experienced and they may review the cumulative effect on the individual. Clearly, the more severe the side effects the more likely it will be that the individual can establish that there is a substantial adverse effect.
An individual would also need to show that there is a “long term adverse effect”. The legal test is whether the impairment has lasted 12 months or is likely to last at least 12 months. ACAS has published some guidance for employers on long COVID. The guidance identifies that long COVID is a new illness, the effects of which can last or come and go for several months. Employer should be mindful that, if an employee has been experiencing symptoms of long COVID for 6 months or so, it will strengthen their argument that there is a long term effect.
It is also worth noting that there has been growing pressure on the Government to recognise long COVID as a recognised disability. Studies conducted in June 2021 by the Trades Union Congress (TUC) are in favour of extending Equality Act 2010 protections to ensure employers cannot legally discriminate against workers with long COVID. In addition, the union body is calling on ministers to recognise COVID-19 as an occupational disease, thereby entitling employees and their dependents to protection and compensation if they contracted the virus while working. This pressure may lead to further changes over coming months.
It is important that employers are equipped and prepared to deal with employees that are suffering from long COVID in the workplace. Whilst the ongoing uncertainty surrounding long COVID creates difficulties, there are still steps that employers can take to prepare.
If an employee is experiencing long COVID symptoms, employers should initially endeavour to understand the individual circumstances. The situation may need to be monitored and reviewed over several months, as symptoms change and adapt. It is clear that we do not have a complete understanding of long COVID and our knowledge is likely to develop further over the next 12 months.
Employers should be mindful that an employee that is classified as disabled will have protection under the Equality Act 2010. This means that they should not be treated less favourably due to the condition itself, or any thing which arises from the condition. By way of example, disciplining an employee due to their COVID sickness absence could give rise to discrimination arising from a disability claim entitling the employee to bring a claim at tribunal.
The ACAS guidance also identifies that long COVID has been found to more severely affect older people, ethnic minorities and women.
If an individual is disabled, an employer has a duty to make reasonable adjustments. In the context of long COVID, this could involve engaging occupational health and consulting directly with the individual to find ways to support them. Employers should also consider what reasonable adjustments could be made to support the individual. This may involve altering duties, enabling remote working and phased returns/hours. Failure to make reasonable adjustments may place an employer at risk of disability discrimination claims.
It is important that employers are proactive and do not shy away from dealing with employees that are suffering from long COVID. The ACAS guidance recommends that, upon diagnosis, the potential impacts are discussed with a view to collaborating on way to support the sufferer.
Employers should obtain up to date medical information and utilise occupational health, in the same way that they would for normal cases of sickness absence. This medical advice can be particularly useful in identifying any adjustments that could help to support that particular individual and, as mentioned above, this may vary between different employees. Employers should also be mindful that medical professionals are at an early understanding of long COVID, so getting regular medical updates is sensible as more is discovered over coming months and years.
Alongside the ACAS guidance, employers may also find it helpful to read through guidance published by NICE and information which has been published by the NHS for individuals recovering from COVID-19. More recently, the Faculty of Occupational Medicine of the Royal College of Physicians has published some useful guidance for employers. In addition, it may be helpful to offer internal training to line managers to ensure that they are trained and equipped to support their direct reports.
Finally, employers should be understanding and flexible when communicating with employees. There isn’t a standard list of symptoms of long COVID, meaning that symptoms can vary vastly between individuals. Those that are suffering from long COVID may be anxious about their health and the uncertainty of their condition. Employers should schedule frequent catch up meetings to support and understand how ill employees are feeling. Likewise, they should be mindful that the support they offer may need to adapt to ensure it is appropriate for that particular individual and any changes to their health.
If you would like to discuss any issues covered in this update please contact a member of the Employment team.
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