An estimated 1.2 million people in the UK are now thought to be living with the long-term effects of long COVID, sometimes with life changing effects on their day-to-day activities (according to December's edition of the ONS' statistical COVID-19 bulletin). At a national level the UK government has made financial pledges to tackle long COVID through research and it is recognised that this is a global problem. But what does this new illness, "long COVID", mean for the future of businesses and their staff?
What is "long COVID"?
For most of us who have suffered from COVID-19 at some point over the last 18 months, the list of symptoms is disarmingly familiar: a new and persistent cough, high temperature, and loss of taste and smell. However, most mild cases improve within a few weeks and have no lasting side effects.
But these symptoms are now being recognised as markers of a more long-term illness, coined as "long COVID". Indeed, the National Institute for Health and Care Excellence (NICE) has recognised the illness, defining 'long COVID' – or 'Post-COVID-19 Syndrome' – as 'signs and symptoms that develop during or after an infection consistent with COVID-19, which continue for more than 12 weeks and are not explained by an alternative diagnosis. It usually presents with clusters of symptoms, often overlapping, which can fluctuate and change over time and can affect any system in the body'.
As an estimated 1 in 20 people who have contracted COVID-19 will go on to suffer long COVID (representing over a million people in the UK), employers may be worried about what this means for their organisations, both in terms of ensuring business continuity and supporting their workers. Could individuals with long COVID benefit from legal protection? The answer is yes, potentially.
Is long COVID a disability?
Some impairments, such as cancer, HIV, or blindness, are automatically treated as a disability under the Equality Act 2010 without the need to satisfy the two-stage legal test. However, long COVID has not yet been added to this list, despite calls from the Trade Union Congress (TUC) earlier this year for long COVID to be recognised as such.
For someone to be recognised as having a disability, the Equality Act 2010 states that a person must have (i) a physical or mental impairment and (ii) which has a "substantial" and 'long-term" adverse effect on the ability to carry out normal day-to-day activities. Given the NHS recognises depression and anxiety, problems with memory and concentration ("brain fog"), heart palpitations, and extreme tiredness as indicators of long COVID, an employee may well be able to argue that they are suffering from an impairment affecting their ability to carry out day-to-day activities, such as shopping, getting dressed, cooking etc.
As to whether the impairment has a substantial and long-term adverse effect on their ability to carry out day to day activities, will depend on the facts of each case and may be more difficult to prove. It is generally recognised that if an illness lasts for at least 12 months or is likely to, or indeed for the rest of a person's life, it will be classed as "long term" for the purpose of determining disability. However, this is problematic for long COVID, as it is a relatively novel illness and is not yet fully understood.
What does this mean for me, as an employer?
If an employee is suffering from symptoms such as listed above, over a long period, then this may amount to a disability. If an employee is recognised as having a disability, then you as their employer are under a duty to make "reasonable adjustments" to assist disabled employees at work. What will be considered a "reasonable adjustment" will depend on the employee concerned and their role and could cover anything from altering their working hours to acquiring specialist equipment. A good rule of thumb to follow would be to consider whether the proposed adjustment has the effect of removing or reducing the employee's disability so they can do their job.
Acas has issued advice for UK employers which explains that the usual rules for sickness absence and sick pay apply if someone is off work with long COVID and that employers should be aware that the effects of the illness can fluctuate from day to day.
It is with this in mind, therefore, that employers must be careful when dealing with employees suffering from long COVID. It is advisable for you to support affected staff. Making reasonable adjustments when requested, can facilitate their ongoing employment and may reduce the likelihood of any potential disability discrimination claims against the business. Such adjustments could take the form of reducing or altering their working hours, changing their role, or allowing the individual to work from home.
Given that the number of individuals contracting COVID-19 continues to grow, both nationally and worldwide, so too are the number of those who will experience ongoing physical or mental symptoms. Although progress has been made in understanding long COVID, more research still needs to be done. In the meantime, employers should take a cautious approach in the way manages those within organisations who exhibit symptoms of long COVID once they return to work, having recovered from COVID-19 itself.
With thanks to Lucy Moore for her contribution.
