Long COVID: what employers need to know

Although the rate of COVID-19 infections is falling across the UK, that is not the case for long COVID. According to ONS statistics published on 6 May 2022, as at 3 April 2022, an estimated 1.8 million people in the UK are experiencing self-reported long COVID (up from 1.7 million the previous month).

Fatigue is the most common symptom (51%), followed by shortness of breath (33%), loss of smell (26%) and difficulty concentrating (23%). Long COVID is most prevalent in people aged 35 to 49 years, females, people living in more deprived areas, those working in social care, teaching and education or health care and those with another activity-limiting health condition or disability.

The impact of long COVID can be significant. The ONS found that 67% of people said that the symptoms adversely affected their day-to-day activities while 19% reported that their ability to undertake their day-to-day activities had been “limited a lot”.

In April 2022, the CIPD published its report Health and wellbeing at work 2022. This revealed that 46% of organisations surveyed had employees who had experienced long COVID in the past 12 months.

Is long COVID a disability?

A specific issue of concern for employers is whether or not long COVID is a “disability”. The Equality Act 2010 defines it as a physical or mental impairment that has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities.

Where an employer knows (or could reasonably be expected to know) that the individual has a disability, they have a duty to make reasonable adjustments if the disabled person is placed at a substantial disadvantage compared to non-disabled people.

The Equality Act 2010 Employment Statutory Code of Practice, (paragraph 6.33), sets out a non-exhaustive list of possible adjustments that might be taken by employers which include:

• Allocating some of the disabled person’s duties to another worker.
• Altering the disabled worker’s hours of work or training.
• Assigning the disabled worker to be absent during working or training hours for rehabilitation, assessment or treatment.
• Providing supervision or other support.
• Modifying disciplinary or grievance procedures for a disabled worker.
• Modifying performance related pay arrangements for a disabled worker.

In some circumstances, it may be necessary for an employer to take a combination of steps.

When considering the adjustments to be made and whether such adjustments would be reasonable, paragraph 6.28 of the Code of Practice sets out some of the factors which might be taken into account:

• Whether taking any particular steps would be effective in preventing the substantial disadvantage.
• The practicality of the step.
• The financial and other costs of making the adjustment and the extent of the any disruption caused.
• The extent of the employer’s financial or other resources.

Long COVID is a new illness which we don’t fully understand yet and it affects people in different ways. The uncertainty for employers is whether long COVID should be treated as a disability.

ACAS has published Long COVID advice for employers and employees.

ACAS takes the view that employers should focus on the reasonable adjustments they can make to support the individual suffering from long COVID rather than trying to work out if their condition is a disability. Some of the steps suggested by ACAS, when the individual returns to work, include a phased return and making changes to the workplace or different working hours.

Earlier this year, the Equality and Human Rights Commission (EHRC) appeared to agree with the stance taken by ACAS. It said that as a substantial number of people were still suffering the effects of long COVID after 12 months, the best approach for an employer was  to assume that someone with long COVID had a disability. However, on 9 May, the EHRC issued a statement about long COVID. It said that because long COVID is not one of the conditions listed in the Equality Act 2010 automatically deemed to be a disability, such as cancer, HIV and multiple sclerosis, not all cases of long COVID will meet the definition of disability. Whether or not someone has a disability is a question for the Employment Tribunal to determine and it will consider the effect of long COVID on the particular individual taking into account all the elements of the definition of disability set out in the Equality Act 2010. The EHRC advises employers to continue following existing guidance when considering reasonable adjustments for disabled people. The EHRC’s statement follows a tweet it made the day before (which was met with concern by long COVID support groups) that without case law or scientific consensus, the EHRC does not recommend that long COVID should be treated as a disability. Today’s EHRC statement clarifies that whether or not long COVID does meet the definition of disability will depend on its effect on the individual concerned.

Interestingly, back in June 2021, the TUC called for long COVID to be recognised as a disability under the Equality Act 2010 and earlier this year it published interactive guidance for its members.

What are the other the implications of long COVID for employers?

Absences from work due to long COVID inevitably raises the issue of sick pay.

Employers are obliged to provide a written statement of certain “employment particulars”. These include terms and conditions relating to incapacity for work due to sickness or injury, including any provision for sick pay. The written statement or contract of employment may specify that only SSP is payable (currently £99.35 a week) subject to the employee’s eligibility, or it may provide for contractual sick pay at a higher rate. An employee’s right to sick pay/time off work will be set out in their written statement or contract of employment. Accordingly, the employer’s usual rules for sickness absence and sick pay will apply when someone is off work because of long COVID. Once the entitlement to contractual sick pay or SSP comes to an end, and the individual is still unable to return to work, they may be eligible for other statutory benefits.

In terms of managing long COVID absences from work, employers need to bear in mind the recommendation that it should be treated as a disability. In addition to this, the employer’s sickness absence policy will apply. This will usually specify what steps are to be taken at various stages. For instance, obtaining a medical report or referring the individual to an occupational health expert and meeting with the individual to discuss the medical position.

Comment

It may be some considerable time before long COVID is fully understood. It is a new illness, its symptoms can fluctuate and it affects people in different ways at different times.

In the meantime however, employers have to manage the challenging issues it raises as there is nothing to indicate that the number of people suffering from long COVID will fall in the foreseeable future. Employers should also be mindful of the prevalence of long COVID in particular groups of people and specific sectors of work.