There is good news on the horizon for long Covid sufferers, with promising drugs being trialled to treat certain aspects of the condition, particularly fatigue, which is the most commonly reported symptom.
However, the reality for many businesses is that there are now a significant number of employees living with the condition. Office for National Statistics figures for March 2023 confirmed that an estimated 1.9 million people living in private households in the UK (2.9 per cent of the population) were experiencing self-reported long Covid (symptoms continuing for more than four weeks after the first confirmed or suspected coronavirus infection that were not explained by something else); 79 per cent of them reported an adverse effect on their ability to carry out their day-to-day activities, with 20 per cent of people (380,000) reporting that their day-to-day activities had been ‘limited a lot’.
Addressing the challenges this presents is made harder by the lack of clarity surrounding long Covid. Symptoms can range from fatigue and breathing difficulties to brain fog, nausea and insomnia. There is also likely to be a range of causes, from a reservoir of virus causing ongoing symptoms to a new auto-immune condition arising in response to the original infection. The statistics show that while some recover relatively quickly from these ongoing symptoms, others can still be suffering more than a year after they were infected, if not longer.
If an employee is not able to perform some or all of their duties for a period of time, the employer may start thinking about steps such as reducing pay, changing the role or even terminating the employment. But employees have a range of potential rights that need to be factored in. These rights will depend on their length of service (whether they have the two years' service necessary to provide them with protection from unfair dismissal) and whether their medical condition amounts to a disability under the Equality Act 2010.
A condition will amount to a disability where it has a ‘substantial’ and ‘long term’ adverse effect on an employee's ability to do normal daily activities, and there has been at least one employment tribunal decision confirming that long Covid may be a disability. But given the extent to which the symptoms of long Covid vary in their nature, duration and intensity, businesses will need to consider each employee with the condition on an individual basis.
This can present a challenge for employers, who may need to commission medical reports to help them decide whether an employee is disabled and, if so, what reasonable adjustments should be made.
Long Covid is a condition that medical experts themselves are only just beginning to understand. This means that obtaining definitive information, particularly about prognoses, may be particularly difficult. Employees equally may feel that their condition is not understood and that their employer is not therefore meeting their needs. The varying presentations can also mean that employers make seemingly inconsistent decisions and employees may feel that they are entitled to be treated in the same way as others with the condition, even if they are affected in different ways.
Organisations also need to be mindful of the potential for harassment of employees with long Covid by their colleagues. Because of the varying presentations, it is possible that colleagues or managers are unsympathetic, making comments or refusing requests for help. This can in turn have an effect on decisions taken in relation to the employee, possibly giving rise to disability discrimination claims.
Acas recommends that employers focus on the reasonable adjustments they can make rather than trying to work out if an employee's condition is a disability. This needs to start with an open dialogue about their condition and a sufficient understanding of long Covid among managers and HR professionals.
Older people, women and certain ethnic groups are more likely to experience long Covid, despite not being as badly affected with primary Covid. Therefore, treating those with long Covid less favourably than other employees with long-term health conditions or adopting rigid or unjustifiable policies about, for example, attendance at the workplace, could give rise to direct or indirect age, sex or race discrimination claims, as well as claims of disability discrimination. For employees who are sufficiently unwell, exploring the availability of benefits under the employer's permanent health insurance scheme might head off a dispute.
Until medical science produces solutions, long Covid will remain a particular challenge for the sufferers and their employers, and openness and good communication on both sides will be the key to finding solutions.
Libby Payne is a partner at Withers