The Office for National Statistics has estimated that more than one million people in Britain have suffered or are currently suffering from post-Covid syndrome, commonly known as long Covid. This poses the next challenge which the pandemic is throwing at employers.
What is long Covid?
Although there is no agreed definition, most medical studies and guidance seem to characterise long Covid as a collection of symptoms which continue for four weeks or more after a confirmed or suspected case of Covid-19. Some people report having the condition for many months.
However, identifying long Covid and understanding it is still not straightforward, as not everyone experiences the same symptoms or has symptoms for the same length of time. A recent survey of 3,762 people from 56 countries with confirmed or suspected long Covid, found there were 203 symptoms in 10 organ systems. The most common symptoms after six months were fatigue, post-exertional malaise (where health worsens after physical or mental exertion) and brain fog.
The NHS states other common symptoms include: shortness of breath, difficulty sleeping, heart palpitations, dizziness, pins and needles, joint pain, depression and anxiety, earaches, diarrhoea, stomach aches, a high temperature, coughs, sore throats and headaches among others. Various studies are ongoing to better understand and identify long Covid and identify effective treatments.
Given the variety of potential symptoms, it is easy to see that some employees are going to need to take extended sick leave and others may be unable to carry out their full employment duties while experiencing symptoms.
Is long Covid a workplace disability?
For the purposes of discrimination law, a disability is a physical or mental impairment that has a substantial and long-term negative effect on a person's ability to do normal day-to-day activities. Long-term means the impairment has lasted or will last for at least 12 months or can come and go or is likely to last for the rest of the person's life.
With each individual experiencing different symptoms, severity of symptoms and duration of symptoms of long Covid, it is hard to say whether it will always amount to a disability. The TUC has recently called for it to be recognised as a ‘deemed disability’ to overcome this issue – in other words, for it to automatically be accepted as a disability, bypassing the complexities of the statutory definition above. However, if this is implemented, it will likely lead to arguments as to where the boundary between normal Covid and long Covid lies.
Due to the uncertainty as to whether long Covid will be a disability in each person’s circumstances, it will be lower risk for employers to act on the basis that employees with it have a disability while more information is pending. This means focusing on the reasonable adjustments employers can make.
Even if long Covid is not a disability, employers should be careful that policies do not disadvantage those with the condition or indirectly discriminate against other protected characteristics. For example, long Covid has so far been found to affect older people, ethnic minorities, and women more severely.
What happens if employers do not make reasonable adjustments?
If employers fall foul of discrimination law, they are likely to face grievances from employees and ultimately employment tribunal claims. Discrimination claims are uncapped in terms of compensation and injury to feelings awards can currently range from £900 to £45,600.
There may also be negative employee relations and public relations impacts.
What reasonable adjustments should employers consider?
This will likely be the most challenging part for employers. The uncertainty in the medical science makes it difficult for employers to make informed decisions about what adjustments might be appropriate. What is suitable will depend on the particular circumstances for that individual and their role. Some suggested adjustments might be a phased return to work, altered duties, altered working hours, more breaks, equipment adjustments or location of working.
Additionally, the uncertainty makes it difficult for businesses to accurately estimate and balance the cost (both financial and in business terms) of proposed adjustments over the indefinite term to assess their reasonableness.
Various bodies, such as the Society of Occupational Medicine and Acas, have issued guidance to support employers with this. Another port of call for employers will be occupational health, who will be able to suggest adjustments based on symptoms until further research is completed.
A word of reassurance
Although employers will undoubtedly find navigating this new condition challenging. Treatments are improving and increased vaccination and reduced infection rates will hopefully consign this issue to the past one day soon. Until then, employers will have to continue feeling their way through this tricky issue.
Lisa Rix is a senior associate at specialist employment law firm GQ|Littler