Andrew Rayment, Laura McLellan and Kendel Shepherd look at the issues created by Long Covid and set out some practical steps for employers.
Although lockdown and social distancing restrictions were largely lifted on 19 July, it is clear that COVID will continue to be present in our lives for some time, especially for those suffering from Long COVID. So when an employer is faced with an employee suffering from Long COVID what should it do?
What is Long COVID?
After testing positive for coronavirus and recovering from the infection, for some the virus can cause lasting symptoms for a matter of weeks or months after the infection has gone.
Essentially, it is the mother of all hangovers you didn’t want after a night out. Just like recovering from a hangover, the recovery rate is different for everyone.
Some people may have mild symptoms and recover within a few days. However, for others the symptoms can last much longer even after they have rid themselves of the infection. Plus, just because someone had mild symptoms with the infection initially, does not mean they won’t have long-term post-virus symptoms.
What are the symptoms of Long COVID?
The NHS website, details a list of common Long COVID symptoms which includes:
- extreme tiredness (fatigue)
- shortness of breath
- chest pain or tightness
- difficulty sleeping (insomnia)
- feeling sick, diarrhoea, stomach aches, loss of appetite
- a high temperature, cough, headaches, sore throat, changes to sense of smell or taste
Long COVID is typically diagnosed when the ongoing symptoms persist for longer than 12 weeks and cannot be explained by any other condition. It is worth noting that the ongoing symptoms suffered can come and go. Some people have reported experiencing the symptoms for more than a year.
As at 6 June 2021, the Office for National Statistics estimated that almost 1million people living in private households in the UK were experiencing self-reported Long COVID – representing 1.5% of the UK population.
Is Long COVID a disability under the Equality Act 2010?
Under the Equality Act 2010, a disability is defined 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 COVID is a new illness and it is still not fully understood. Certainly, given the length of time that some people can experience these symptoms for and the effect which they are having on people’s day-to-day activities, Long COVID could, in some cases, be deemed a disability under the Equality Act 2010.
As such, there is a risk of disability discrimination if employees suffering from Long COVID are not treated fairly by their employer.
Further statistics show that Long COVID has been found to affect certain categories of people, (older people, ethnic minorities and women) more severely than others. As such, as well as the potential risk of disability discrimination, there is a risk of other types of discrimination too (i.e. age, race, sex etc).
So when an employer is faced with an employee suffering from Long COVID what should it do?
Practical steps for employers
Although employers are used to dealing with sickness absence and long-term absences, it can be difficult to deal with employees who can be fit to work one day and incapacitated the next.
However, as with any sickness absence employers should:
- be proactive about absence management;
- agree how and when to make contact with employees during any absence;
- discuss with the employee what they want to tell others at work about their illness;
- discuss ways to support the employee as they return to work where and when possible;
- consider a referral to an occupational health to obtain an assessment;
- consider any reasonable adjustments to accommodate the employee (including adjusting hours, reallocating duties, allowing employees to work from home);
- consider a phased return.
Employers should remember it is not a one-size fits all and individual circumstances and symptoms should be considered and taken into account when dealing with absence management.
We would recommend employers focus on reasonable adjustments and supporting the employee at work rather than trying to determine whether a particular employee has a disability or not. Either way you have a duty of care to look after your employees.
What is “reasonable” can be difficult for employers to assess. The purpose of a reasonable adjustment is “a change to remove or reduce the effect of an employee’s disability so they can do their job”. Opening up a dialogue with the individual is the best starting place and letting them make suggestions. But determining whether a suggestion is “reasonable”, there’s the challenge and one you may wish to seek advice on.