Discrimination and Long Covid – What Employers Need To Know

Posted: 8th April 2021

What is Long Covid?

‘Long Covid’ as defined by the health watchdog Nice is effects of COVID 19 which have affected an individual for more than 12 weeks.

Symptoms of Long Covid include joint or muscle pain, fatigue, breathlessness and anxiety and depression and the duration of symptoms, common of most viral illnesses can vary widely though most symptoms in other viral illnesses last up to 3 to 6 months.

The nature of the condition is such that awareness of its effects is growing on a daily basis and currently it has no formal medical definition. There is however the potential at least for the condition to amount to a Disability within the meaning of the Equality Act which means that Employers will need to recognise Long Covid in the same way as any other physical or mental disability in terms of dealing with employees who suffer the condition.

This article considers the issues an Employer should be considering in the context of employees suspected of suffering the condition and the approach to be taken in all cases.

Issues to consider?

1. How is the Individual affected?

It is necessary for any disability to arise from a physical or mental impairment. The fact that Long Covid does not have any medical definition does not stop it being an impairment- what is important is to identify what effect the condition is having on the individuals ‘day to day’ activities. This will involve the first-hand account of the individual and potentially the input of the individuals GP or Consultant.

2. How badly are they affected?

A Disability is only such if the impairment(s) suffered by the individual have a substantial adverse effect on their day to day activities. A comparison will need to be made between what they are or are not capable of doing with Long Covid and what they were or were not capable of doing before they became symptomatic. Employers should also appreciate that often physical limitations can impact on an individual’s mental health and that mental effects can affect their ability to do day to day activities. A person suffering anxiety or sleeplessness for example may find it very difficult to maintain their concentration at work, or even to travel to work.

Provided an effect is viewed as more than trivial it is likely to be considered to be substantial.

3. How long has the individual been affected and for how long are they likely to be affected?

The definition of a Disability within the meaning of the Equality Act requires a condition amounting to a disability to be one which has lasted 12 months or one which is likely to last 12 months or more or for the rest of the individual’s life. The first confirmed cases of COVID 19 in the UK were identified on 1st January 2020 so a year has already lapsed and whilst it is arguably still too early to reach any conclusions any employer of an individual who has been symptomatic for over 6 months and showing no signs of improvement ought to assume that the long-term effect condition will be met.

Suggested Approach

Whilst understanding of Long Covid is still evolving Employers are encouraged to accept the real possibility of the condition amounting to a Disability and the consequences of failing to recognise it as such.

Employers will need to consider each case sensitively and carefully and to seek advice from medical experts if necessary before taking any decisions which will affect the employee concerned whether this be in respect of performance management, disciplinary action or changes to terms and conditions.

Employers will also need to be aware of their obligations to make reasonable adjustments in order to remove any disadvantages an employee suffering long Covid may suffer if adjustments are not made. Some typical anticipated adjustments would include changes to working hours and locations and phased returns to work. Again, the message is to listen to the individual and to take advice from your HR and or medical advisers in relation to practical steps which can be taken.

For any advice relating to returning Employee’s back to work after they have recovered from Covid please contact Graham Shannon at [email protected].