Despite the ongoing rollout of the COVID-19 vaccine within the UK, there is no escaping the insidious effect that the pandemic has had on both the economy and our health. One of the more serious implications of the virus has come in the form of ‘long COVID.’
What is long COVID?
Whilst many recover relatively quickly from COVID-19, others may have ongoing symptoms that can last for weeks or even months after the infection has gone – and this is what is known as long COVID. It is very much a growing phenomenon, and evidence of how the condition affects the body and how to treat it is rapidly emerging.
The NHS has published guidance specifically relating to long COVID, noting that some of the common symptoms range from extreme fatigue, problems with memory and concentration, insomnia, depression and anxiety, and dizziness. The Office of National Statistics has also carried out research into the prevalence of long COVID, and have estimated that:
- Around 1 in 5 respondents testing positive for COVID-19 exhibit symptoms for a period of 5 weeks or longer; and
- Around 1 in 10 respondents testing positive for COVID-19 exhibit symptoms for a period of 12 weeks or longer.
These statistics provide a stark reality into the number of people who may be suffering from long COVID and the necessity to provide guidance and assistance on how to manage the condition. South of the border, NHS England has announced £10m of funding to set up specialist long COVID clinics in every area; however, similar funding has not yet been introduced in Scotland.
Will long COVID be considered a disability?
From an employment law perspective, any “substantial” adverse physical or mental condition that has affected an employee for longer than 12 months, or likely to last that long, may be classed as a disability under the Equality Act 2010 (“EQA”). The bar for an adverse effect being “substantial” is very low, being an effect that is “more than minor or trivial”. The meaning of “likely” in terms of the duration of the condition is interpreted to mean “could well happen” and so a lower test than the balance of probabilities.
The question of whether long COVID will be classed as a disability under EQA remains to be seen as the condition is still relatively new and not yet fully understood. There is no need for long COVID to be formally diagnosed to amount to an impairment if the effects are evidenced and satisfy the above test. However, it is likely that this question will make its way to an Employment Tribunal soon, which will assist to clarify the position. The assessment of the likelihood of whether the condition would last 12 months is based upon the information available at the time of the alleged discriminatory action.
If long COVID is found to be a disability under the EQA, this will give rise to a legal duty on employers to make reasonable adjustments to support staff adversely affected by long COVID. The employer may also find itself liable for discrimination claims where they have treated the employee unfavourably because of something arising as a consequence of the employee’s long COVID if it can’t be justified. However, even if long COVID is found to not qualify as a disability, it’s important for employers to still be aware that they owe a general duty of care to all of their employees for their health.
In light of the uncertainty surrounding long COVID, the Advisory, Conciliation and Arbitration Service (“ACAS”) has recently published specific guidance for employers and workers in respect of the growing impact of it.
The guidance provides some helpful commentary and states that, despite the varying and diverse symptoms of the condition, the usual rules for sickness absence and sick pay should apply when someone is off work because of long COVID. An exception to this is that, if an employee is off ill due to COVID-19, statutory sick pay should be payable from their first day off sick, as opposed to the normal rule which is the fourth qualifying day.
When an employee is off sick due to long COVID, the guidance states that employers should agree with the employee on how and when to make contact whilst they are absent and engage in discussions relating to how the employer can best support the employee affected on their return to work. In particular, the advice suggests that occupational health assessments and flexible working patterns are options that could be considered by employers faced with this situation.
As a final point, the guidance notes that employers should ensure that they have considered all options before resorting to a capability procedure.
How can we help?
Proactively engaging effectively with the employee concerned and with occupational health providers is an important first step. Bear in mind, also, that performance or conduct issues could well be linked to long COVID and require to be handled with care.
If you have any questions about what this means for you or your organisation, please get in touch with our Employment team.
This article was co-written by Sarah Milne, Trainee Solicitor.