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It is common for COVID-19 infection to last from two to four weeks. However, those who have symptoms that continue over four weeks and prevent them from doing normal activities are referred to as suffering from Long COVID. The Office for National Statistics estimated that 1.1m people had experienced Long COVID symptoms, which are most prevalent in 35 – 69-year-olds.
Long COVID could prevent employees from adequately performing their duties and result in them taking an increased number of sickness absences, creating issues for employers over both the short and long term.
It is possible that Long COVID could meet the statutory definition of a disability under the Equality Act 2010, based on the following criteria:
Long COVID would likely meet the first two criteria. Symptoms of Long COVID include pain, exhaustion, anxiety and an inability to focus or function normally, and it has been compared to fibromyalgia, chronic fatigue syndrome and ME, all of which have been held to capable of being physical or mental impairments.
Whether the effects are substantial will depend on the severity of the symptoms in the individual. However, the Equality Act 2010 states that symptoms must be more than “minor or trivial”, and, given the reported effects of Long COVID, it may also meet this criterion.
As Long COVID is relatively new, there is a lack of data about the long-term effects it may have on a sufferer. An impairment would only meet the criterion for a long-term effect if it has lasted or is likely to last at least 12 months. At present, it is not clear if this is the case with Long COVID. It is, however, possible that claims relating to discrimination due to an employee having been treated less favourably because of Long COVID may start to be issued in the near future. This would test whether Long COVID meets the definition of a disability.
Employees who are absent from work with Long COVID will need to be carefully managed. It is important for employers to maintain appropriate contact with employees who are on sick leave. The amount of contact will often depend on the employee’s job and the size and culture of the employer’s business. A balance should be struck between demonstrating concern and offering support and maintaining sufficient distance so that the employee does not feel pressured to do work-related activity. Employers should avoid overbearing or intrusive contact or any course of conduct that could cause distress.
Employers need to review the business’s absence procedure and employees’ contracts of employment to ensure that managers are clear and familiar with the rights of the employee (such as the right to contractual sick pay) and internal processes.
Employers should ensure that records are kept of all meetings and correspondence with an absent employee. File notes of telephone conversations should be kept, as well as records of telephone messages. Ideally, these should be followed up with letters summarising the steps taken and agreed action plans.
If it is the case that Long COVID meets the statutory test for a disability, the Equality Act 2010 impose a duty on employers to make reasonable adjustments to help employees. Adjustments might include altering work hours or duties, extending sick pay or avoiding dismissal for persistent absences. Whilst the duty to consider making reasonable adjustments falls on the employer; it is good practice for the employer to ask employees about possible suitable adjustments.
Irrespective of Long COVID meeting the statutory test for disability, employers must also be mindful of the requirement to act reasonably before making any decision to terminate employment by reason of incapability or absence caused by Long COVID. Acting reasonably in all circumstances is necessary to avoid unfair dismissal claims where employees have two years or more of qualifying service.