The vast majority of those who become infected with COVID-19 go on to make a full recovery. However, there are some individuals who develop symptoms which continue for more than 12 weeks and are not explained by an alternative diagnosis. This is known as ‘post COVID-19 syndrome’ and is more commonly referred to as ‘long-COVID’.
The most reported symptoms of long-COVID include fatigue, shortness of breath, loss of smell and muscle ache, and the effects are a growing concern for employers. Here we take a brief look at how employers can manage long-COVID in the workplace and how they can support their employees.
Is long-COVID classed as a disability?
The Equality ACT 2010 states the definition of 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 it is likely to affect a person for 12 months or more and ‘substantial’ means it has more than just a minor impact on a person’s ability to perform daily tasks.
As to whether long-COVID is classed as a disability, employers should not adopt a ‘one-size fits all’ approach as every case will need to be assessed individually. In May 2022, it was determined in the case of Burke v Turning Point Scotland that the claimant’s long-COVID did amount to a disability under the Equality Act, after the claimant was dismissed by his employer on ill-health grounds.
Although this was a first-stage tribunal decision and therefore nonbinding, it demonstrates that people with long-COVID can be classed as ‘disabled’ in law. Employers should therefore consider the risk of disability discrimination claims when dealing with issues associated with long-COVID, as there is no limit on the compensation that can be awarded in respect of such claims.
What can businesses do to support their employees?
The usual sickness absence and sick pay rules apply when an employee is absent from work due to long-COVID. However, employers should adopt a strategic, planned approach to managing long-COVID in the workplace and focus on the reasonable adjustments they can make to address any disadvantages that employees suffering with the associated symptoms may be subject to.
Employers should consider the health and wellbeing of affected employees and take positive steps to keep in touch by agreeing a certain level and frequency of communication. This will allow employers to keep up to date with the employee’s condition and the likelihood of a return to work.
Before implementing a return to work, it is advisable for employers to liaise with the employee about any support they may need to facilitate this, e.g. in respect of:
- Undertaking an occupational health assessment.
- Consideration of a phased return or working different hours.
- Making adjustments to the workplace or to how the employee works e.g. home or hybrid working, lighter duties etc.
- Understanding what information about their condition and symptoms the employee wants to share with others in the workplace.
Employees who return to work but continue to experience the symptoms of long-COVID should be supported via regular reviews. This will help the employer identify any deterioration in their condition and a possible need for further time off work. If an employer feels the employee is not able to carry out their tasks effectively, or needs to take further time off, a further occupational health referral should be made.
Long-COVID is a reminder that the effects of the pandemic will continue for some time, and it is important that employers review their practices to ensure employees receive the necessary support. Sickness absence policies should be kept up to date and employees should be made aware of the policy. It is also important that managers are fully trained on how the policy should be implemented.
You can find an abundance of information relevant to this topic in the resources section of our website, including our ‘Managing Absence – Long Term Ill-Health’ factsheet which is available for free download. Alternatively, if you have any questions or concerns about this or any other aspect of HR, Employment Law or Health & Safety, please contact us on 01942 727200 or at firstname.lastname@example.org for an initial consultation without charge or obligation.