Tackling the effects of long COVID in the workplace
11 February 2021: Employers are increasingly having to assess employees diagnosed with ‘long COVID’ to determine if they are classed as disabled for employment law purposes and make reasonable adjustments to assist those suffering from the condition.
The development follows growing evidence of long COVID in the UK, where those who have had COVID-19 continue to suffer health issues such as chronic fatigue, breathing problems and stress after their initial symptoms have disappeared.
Figures suggest that long COVID has a higher prevalence among those of working age. It affects around 10% of 18–49-year-olds who become unwell with COVID-19, rising to 22% of over 70s, according to research conducted by King's College London. Women are 50% more likely to suffer from long COVID than men (14.5% compared with 9.5%).
There are also instances of infected people getting long COVID symptoms even if they were asymptomatic and did not show symptoms while infected.
What should employers do?
“With the establishment of long COVID clinics throughout the UK and GPs becoming better-trained in recognising this condition, we are likely to see far more clinical diagnoses of long COVID and related Employment Tribunal claims in the future”, said Michelle Chance, Employment Partner at City Law Firm, Rosenblatt Limited.
Chance continued: “Employers should therefore educate their workforce and particularly those with managerial responsibilities about recognising the signs and symptoms of long COVID early. These can include breathlessness, heart palpitations or rapid heartbeat, lung damage, joint and muscle pain, fever, fatigue/exhaustion, insomnia, headaches, loss of taste and smell, and a lack of concentration (brain fog), as well as mental health issues including anxiety and depression.”
Definition of a disability
In most circumstances, the question of whether an individual is disabled is based on the definition of disability under the Equality Act 2010: “You’re disabled under the Equality Act 2010 if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities,” added Chance.
“‘Substantial’ is more than minor or trivial, eg, it takes much longer than it usually would to complete a daily task like getting dressed. ‘Long-term’ means 12 months or more.
“Long-COVID appears to manifest itself in a range of different conditions in different people, and in some situations, it is possible it could fall under the definition of a disability in the Equality Act 2010”, said Tom Neil, Acas Senior Adviser.
“However, whether it amounts to a disability or not, it makes sense for managers to consider what they can do to support a team member carry out their job.”
What is classed as disability discrimination?
If an employee has long COVID and the condition amounts to a disability, it is:
- Direct disability discrimination if their employer treats them less favourably because of something arising as a consequence of their disability, unless the employer can show that the treatment is a proportionate means of achieving a legitimate aim.
- Indirect disability discrimination if the employer operates a provision, criterion, or practice, such as a work policy, which puts employees who are disabled by long COVID (including employees who are complaining about it) at a disadvantage compared with people who are not.
Neil added: “Acas would encourage employers and their staff to work together to consider if there are any changes or adjustments to work that may be appropriate and reasonable, which would enable the employee to continue working.”
This applies to all workers, including trainees, apprentices, contract workers and business partners.
According to GOV.UK, reasonable adjustments include:
- Changing the recruitment process so candidates can be considered for a job
- Doing things another way, such as allowing someone with social anxiety disorder to have their own desk instead of hot-desking.
- Making physical changes to the workplace, like installing a ramp for a wheelchair user or an audio-visual fire alarm for a deaf person
- Letting a disabled person work somewhere other than their place of work
- Allowing employees who become disabled to make a phased return to work, including flexible hours or part-time working
- Changing their equipment, for instance providing a special keyboard if they have arthritis
- Offering employees training opportunities, recreation and refreshment facilities.
Constructive unfair dismissal
Michelle Chance concluded: “Employers should also be aware that whilst an employee may not be able to satisfy the legal definition of a disability, if they have more than two years’ continuous employment, they may instead allege in such circumstances that their employer’s treatment of them constitutes a fundamental repudiatory breach of the implied duty of mutual trust and confidence which their employer owes them, entitling them to resign and treat themselves as having been unfairly dismissed by their employer.”