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Although legal restrictions have been lifted, it’s estimated that more than 2 million people are still suffering the effects of long COVID and going forwards, employers need to consider how they manage this.

The term “long COVID” has been most commonly used to describe signs and symptoms that continue to occur or develop for more than 12 weeks, and are not explained by an alternative diagnosis, after an individual has contracted and suffered the effects of acute COVID-19.

Is it a disability?

It’s been argued that long COVID should amount to a disability, however, the effects of long COVID can vary for different people. As a result, we suggest each case be considered on its own merits as to whether their condition qualifies as a disability.

The Equality Act 2010 defines a disability as a physical or mental impairment that has a “substantial” and “long-term” adverse effect on a person’s ability to do normal daily activities.

Employment tribunals do not focus so much on the medical label given to a condition but will look at the effect of the impairment. Someone suffering from chronic fatigue will most likely be deemed to be suffering from a physical impairment. Whereas someone who struggles with a lack of concentration will probably be considered to be suffering from a mental impairment.

Once again, the terminology needs to be quantified and qualified. It is our understanding that “substantial” means more than “minor or trivial” and so has a low threshold and “long-term” means it has lasted or is likely to last 12 months or longer.

New condition?

However, long COVID is a new condition, and it is possible that a tribunal could find that long COVID can amount to a disability under the Equality Act. So, to be really helpful, we thought it would be useful to offer our advice on how you should approach a case where one of your employees says they have long COVID?

Seven ways to reducing the risk of claims

  1. Treat long COVID as you would any other health condition. Ensure you have the relevant medical evidence in front of you before making any decisions. This may need to be a specialist report, rather than a GP’s notes.
  2. If you believe that that there is a high likelihood that your employee’s condition amounts to a disability, you will need to look to meet your duties to that employee. This will involve a consultation with them to look at ways to alleviate the impact and, if appropriate, help them to get back to work.
  3. It will be necessary for you to reassess workplace provisions, criteria and practices (PCPs), such as working hours, workload, physical tasks and travel requirements, and making adjustments to these will be needed.
  4. But when it comes to implementing these adjustments, this will depend on what is reasonable, taking in account considering factors such as cost, the practicality of making the adjustment and its effectiveness. Case law has decided that employers will only rarely be required to extend sick pay as a reasonable adjustment because it does not usually assist the employee to work. However, if you provide permanent health insurance benefits, the expectation that you do what you can to ensure your employee can benefit from this may be greater.
  5. Keep comprehensive notes of your decision-making process when implementing or rejecting reasonable adjustments.
  6. If you come to the stage where you need to dismiss an employee, you need to make sure that what you do is not deemed as being unfair and/or discriminatory. You must ensure that your processes and procedures as well as your absence management policies, are appropriate, reasonable and have been followed properly. Once again keep comprehensive notes on the how, why, what and when you came to the decision that the employment was no longer sustainable.
  7. Given the fact that the impact of the condition may vary between different groups, e.g., older workers, ethnic minorities and/or women, any capability procedures should be approached with caution and flexibly maintained. If you fail to do this, as well as a disability discrimination claim, you could also face other indirect discrimination implications.

How can we help?

If you need further help to ensure your employees feel supported and know what’s expected of them and/or to reduce the risk of disability discrimination claims, please contact caroline.robertson@actifhr.co.uk for non-obligatory advice.