New law: Employers need to consider whether long COVID is a disability, or risk disability discrimination claims

There is growing evidence of ‘long COVID’ in the UK, where those who have had COVID-19 continue to suffer health issues such as tiredness, weakness, headaches, joint pains, breathing problems and stress after their initial symptoms have disappeared. There are also instances of infected people getting long COVID symptoms even if they were asymptomatic and did not show symptoms while infected.

Employers are having to consider whether such employees may be disabled for employment law purposes, and act to avoid allegations of disability discrimination and failure to make ‘reasonable adjustments’.

Someone is disabled for discrimination law purposes if they have a physical or mental impairment which has, or is likely to have, a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. ‘Long-term’ usually means 12 months, which can include conditions where the symptoms come and go, provided they are consistent and persistent.

Some long COVID sufferers report being unable to walk short distances or even get out of bed, and this could well meet the definition of a physical impairment that has, or is likely to have, a substantial adverse effect on the sufferer’s ability to carry out normal day-to-day activities. However, the uncertainty, because COVID-19 is a new virus, is whether its effects are ‘long-term’ for these purposes. Some point out the similarities between long COVID symptoms and those of ME, which is a condition where symptoms can come and go for well over 12 months, consistently and persistently, and therefore amounts to a disability.

Other conditions a long COVID sufferer already suffers from may also be relevant as, cumulatively, the two may amount to a disability, even if long COVID would not qualify on its own.

If an employee has long COVID, and it amounts to a disability, it is:

• direct disability discrimination if their employer treats them less favourably because of something arising in consequence of that 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 the employee who is complaining about it) at a disadvantage compared with people who are not.

Employers must also make ‘reasonable adjustments’ for disabled employees to alleviate the effect of their disadvantage. If an employee with long COVID is disabled, the employer may have to change how things are done at work, such as making physical changes or providing equipment or help to the employee or allowing them to work more flexibly. Whether an adjustment is ‘reasonable’ depends on the circumstances but could include furloughing them in certain circumstances.

Employers may also wish to consider insurance which covers long COVID.

Operative date

• Now

Recommendations

• Employers should assess the seriousness of a worker’s long COVID symptoms and take care not to treat them less favourably or put them at a disadvantage until more is known about the duration of long COVID symptoms.
• Employers should consider and make reasonable adjustments to alleviate any disadvantage.