What is long Covid?
Initially, the general advice was that people who contract Covid-19 would only suffer from mild flu-like symptoms and would usually fully recover after a few days’ rest. However, sadly, some people have severe reactions to the disease and/or suffer from debilitating long-term problems, such as chronic fatigue.
People who had mild symptoms at first can also still have long-term problems. Fatigue, pain, headaches, breathing difficulties, muscle weakness, lasting fever, anxiety and stress are some reported long-term adverse effects, which are becoming known as long Covid.
There are growing comparisons with myalgic encephalomyelitis (ME). Employers are used to dealing with long-term absences, but find it much more difficult to deal with individuals who can be fit for work one day and debilitated the next.
Is long Covid a disability under the Equality Act?
Many of the symptoms of long Covid are likely to meet the definition of a disability, which is any physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities.
An impairment will be regarded as long term if it has already lasted (or is likely to last) at least 12 months. Ultimately, an employment tribunal would have to decide on specific facts if long Covid qualifies. If tribunals take a similar approach to ME, employers should assume that anyone who is still suffering from the effects of coronavirus months after they were infected is likely to be able to demonstrate that it is long term and a disability.
If long Covid qualifies as a disability, employers have a positive duty to consider what, if any, reasonable adjustments can be made to assist, such as adjusting working hours or allowing individuals to continue working from home after lockdown.
Here are a few practical points for businesses to consider:
- Be sure to engage with employees and consider making reasonable adjustments such as phased returns to work, adjusting working hours, amending the type of work done, allowing continued home working and providing access to occupational health and employee assistance programmes.
- Ensure you proactively manage absence and refer employees to occupational health to gain a better understanding of the situation.
- Even if adjustments are made, the level of absence may reach the point where you can reasonably dismiss on the grounds of capability. However, you would need to obtain up-to-date medical evidence first, discuss this with the employee and warn them that they may be dismissed. Take advice if you're not sure.
- Employers may be able to make permanent health insurance (PHI) claims on behalf of such employees. Most PHI schemes stipulate a ‘deferment period’, with benefits not payable until the employee has been unable to work for a specified period – typically from six months to a year. Insurers are beginning to accept long Covid claims, but employers need to check with their insurers.
- Ensure line managers appreciate the importance of applying policies and procedures in a non-discriminatory way.
- Employees who are off sick with long Covid may possibly be furloughed, but this should be managed carefully. The furlough scheme is not intended to be used for short-term sickness absence, although businesses are nonetheless able to furlough employees for business reasons when they are off sick if they wish to do so. This is unlikely to be available for intermittent absence.
Brian Palmer is an employment law partner at Keystone Law