There is a still
lot we don’t know about Long COVID and its prognosis which can make it
difficult for employers to properly support staff with the condition and manage
the potential impact on their workforce.
Here we set out
some key considerations for employers:
Q1. What is
post-COVID-19 syndrome or ‘Long COVID’?
At the date of
publication, there is a lack of medical understanding and certainty around what
constitutes Long COVID and why certain individuals continue to have adverse
symptoms after contracting the virus in comparison to the majority who seem to
fully recover after a few weeks.
According to the
National Institute for Health and Care Excellence (NICE) and the NHS which has
adopted this definition, Long COVID is “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 alternative diagnosis”.
There is no test
to diagnose Long COVID for instead the condition is characterised by a common
set of symptoms. The symptoms of long COVID greatly vary but the most common
side effects are fatigue, post-exertional malaise (where health worsens after
physical or mental exertion) and brain fog. Long COVID has drawn comparisons
with ME, otherwise known as chronic fatigue syndrome, which is a post-viral
condition diagnosed by a collection of unexplained symptoms including
tiredness. Additionally, similarly to ME, Long COVID appears to be
unpredictable in its impact as an individual can feel fine one day and then
unwell the next.
Q2. Who does Long
COVID affect?
Long COVID does
not only affect the elderly and those with pre-existing medical conditions but
can affect young and previously healthy individuals. Despite this, there is
evidence to show that being older, overweight, female and having asthma are
risk factors and that ethnic minorities are disproportionately impacted
although there is debate in medical literature as to why this is the case.
The exact number
of Long COVID suffers are unknown but findings from the ONS show that between 7
April 2021 to 13 June 2021, 6.2% of adults self-reported that they have
experienced Long COVID since the start of the pandemic. The number of impacted
individuals is smaller than previously feared but clearly this still impacts a
considerable number of people in the UK and subsequently the workforce.
Q3. Can Long COVID
be classed as a disability?
Whether or not
Long COVID is classed as a disability has so far not been tested in the courts.
However, disability-related cases are often fact-specific so the outcome would
need to be assessed on a case-by-case basis and applied to the Equality Act
2010.
The Equality Act
2010 defines disability as:
For a Long COVID
sufferer to be classed as disabled they would need to meet each element of the
test.
The first part of
the test would clearly be met but whether an individual would meet the second
and third requirements would depend on the factual circumstances of each case.
As we know, symptoms of Long COVID can vary greatly from milder cases
such as loss of taste and shortness of breath to the more extreme symptoms such
as extreme tiredness, organ failure and even depression and anxiety which would
meet this hurdle.
The duration an
individual suffers from Long COVID is also fact-specific, but it seems from
media accounts that Long COVID is capable of lasting over 12 months which would
meet the third requirement. It may be difficult to analyse whether Long COVID
is likely to last at least 12 months as individuals report that the severity of
their symptoms can increase and decrease over time. Whilst there is no legal
authority on this, case law has shown that ME can be classed as a disability
despite the variable symptoms which suggests Long COVID would be treated the
same.
Q4. What
employment risks should employers be aware of?
Employers should
be mindful that individuals with Long COVID may be recognised as disabled under
the Equality Act 2010 depending on the duration and severity of their symptoms.
This means that if an employee is put at a disadvantage or treated less
favourably because of their disability then this may amount to disability
discrimination and an employee can claim compensation for their alleged mistreatment,
which is costly for an employer to defend and/or payout.
The Equality Act
2010 also protects individuals from discrimination arising out of a consequence
of a disability. For example, if an employer penalises an employee because of
their high sickness absence related to Long COVID then this could again amount
to discrimination. ACAS advises employers to treat Long COVID as any other
illness however it is important to be mindful that, unlike other illnesses,
Long COVID is still a relatively new condition with variable symptoms, so it is
prudent to exercise caution when dealing with sickness absences.
Women, the elderly
and ethnic minorities have a higher probability of developing Long COVID which
may put employers at risk of indirect discrimination claims if they have a
policy, practice or criteria which inadvertently impacts them more than other
groups.
Long COVID can be
a freestanding condition or arise out of, or lead to, a connecting medical
condition. In either case, employers should consider whether an individual’s
medical condition would pass the Equality Act 2010 disability test and be
afforded protection.
An employer has a
duty under the Equality Act 2010 to make reasonable adjustments to premises or
working practices to help disabled workers.
The symptoms of
suffers with Long COVID are varied so it is likely to be hard in practice for
employers to make informed decisions on what adjustments are likely to be the
most appropriate to support affected staff. We recommend that employers err on
the side of caution and take steps to find out what adjustments would be
suitable by engaging with an occupational health provider where possible to
understand what adjustments would be best suited to an individual’s job role.
Having a
conversation with the affected individual about the types of support they may
need is also recommended as they probably already have an idea of the sorts of
adjustments that would be useful to support them. Examples of reasonable
adjustments could be continued homeworking to reduce travel time, varying the
working hours, access to employee assistance programmes/occupational therapists
or adopting a phased return to work after a long-term sickness absence.
Often the cost of
recruiting and training a new employee is more than the cost of allowing an
employee time off and ensures the organisation retains the right talent so
there is certainly a benefit to the organisation in making adjustments.
Q5. What are our
recommendations to employers?
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