The Office for National Statistics (ONS) has recently released an early set of initial experimental results for estimating the prevalence of, and risk factors for, “long COVID” symptoms and health complications following coronavirus (COVID-19) infection.
Over the past year, there have been numerous reports of COVID-19 symptoms lasting beyond the expected illness phase. Long COVID is said to lead to a range of multiorgan complications, including respiratory, cardiovascular, metabolic and renal impairments.
The Coronavirus (COVID-19) Infection Survey is a nationally-representative sample of the UK and data collected include COVID-19 test results and respondent-reported data on symptoms. This survey has allowed the ONS to estimate that:
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Around 1 in 5 respondents testing positive for COVID-19 exhibit symptoms for a period of 5 weeks or longer
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Around 1 in 10 respondents testing positive for COVID-19 exhibit symptoms for a period of 12 weeks or longer.
So, what does this mean for employers and employees suffering from symptoms of Long COVID?
Is long COVID a disability under the Equality Act 2010?
As long COVID is a relatively new condition there is no existing case law on whether this is covered as a disability under the terms of the Equality Act. This will be assessed against the definition of disability under equality legislation. Specifically, the condition must be a physical or mental impairment that has a substantial long-term adverse effect on the employee’s ability to carry out normal day-to-day activities.
Long COVID symptoms, as reported through the media, included sufferers having difficulty with their mobility. In addition to this, it may also have an impact on the victim’s mental health. This in turn could have a substantial impact on an individual’s ability to carry out day-to-day activities such as exercising or conducting household chores.
Whether a condition is long-term in nature will be assessed on whether or not it has lasted or is likely to last more than 12 months. It seems fair to say that in some instances long COVID will meet the long-term test whereas other more short-term cases may fall short at this hurdle.
Should employers make special arrangements for long COVID sufferers?
As the pandemic has taken its toll on so many individuals and employees, some employers may be inclined to afford extra protection to victims of long covid. This could manifest itself in terms of discounting any absences taken by the employee that are attributable to long COVID. Alternatively, some employers may wish to provide long COVID sufferers with the added financial protection of an increased contractual sick pay entitlement.
This is a recognition of the huge impact that the pandemic has had on so many peoples’ lives, which of course could include long-standing and hard-working employees.
What if an employee is absent due to long COVID?
If any of your employees are experiencing absences due to long COVID symptoms then it would be sensible to work on the basis that their condition is likely to be covered under the Equality Act.
As an employer, your organisation should have an absence management policy. This should set out the steps that you need to take in managing your employee’s absence. Typically, this will involve regular review meetings with an employee. In the context of an absence related to long COVID, employers should consider reasonable adjustments such as allowing an employee to work from home or carry out their duties remotely, to the extent this is possible.
It may be the case that an employee is unable to carry out their role if they are suffering from long COVID. This may apply for instance where the employee is carrying out a physically demanding role which may involve some heavy lifting. In these circumstances, employers should explore the option of redeployment, to the extent, suitable alternative employment exists within the organisation.
Should long COVID sufferers be treated differently from other employees with a medical condition?
In recognition of the global pandemic, some employers may wish to afford employees who suffer from long COVID additional protection. For instance, this could include an additional entitlement to contractual sick pay or discounting absence related to long COVID. In doing so, employers should take a balanced approach to avoid discrimination claims from those employees with other medical conditions.
Sufferers of long COVID aren’t automatically entitled to special treatment over employees with other serious medical conditions – but may well require reasonable adjustments to be put in place by their employer if it knows or ought reasonably to know that the individual in question is disabled and likely to be placed at a substantial disadvantage due to their suffering of long COVID. The sort of reasonable adjustments which might be required depends on the individual and the business and we would urge you to consider any adjustments carefully.
If you have questions or would like any advice about anything employment law-related please contact Adam Woodley or David Hession on 0161 826 0341.
