Long Covid - how much of a disability could it prove, and what does it mean for your business? Employment lawyer Anna Bithrey of Taylor Walton explains your legal responsibilities.
As this is written, one in every ten people in the UK who have had Covid-19 will go on to suffer symptoms of the virus more than three months after first becoming infected. At present, not much is known about how or why so-called ‘Long-Covid’ strikes, who it affects, or how badly it affects them. However, we can be certain that it has the ability to cause chronic illness, which can dramatically diminish the quality of life of anyone it impacts, making even the simplest task a challenge - and work a greater one. So how do you as an employer deal with it?
As many PSPs ramp-up production and more employees return to the workplace following the easing of lockdown restrictions, that’s a vexed question. More than a million individuals in the UK are now said to be experiencing symptoms of Long-Covid, so every business needs to develop a better understanding of just how it impacts them from an HR perspective.
Although there is at present no uniform definition of what Long-Covid is, the NHS explains that sufferers can continue to display a variety of debilitating symptoms for many months after initial infection, with common ailments including joint pain, extreme fatigue, breathing difficulties, soaring temperatures, high anxiety, and brain fog. And it’s already evident that Long-Covid will likely impact significantly on a person’s mental as well as physical health, thus, for the purpose of employment law, any employees experiencing symptoms are likely to be classed as disabled.
Anyone displaying a ‘physical or mental impairment’ that has a ‘substantial’ and ‘long-term’ negative effect on their capacity to carry out day-to-day functions will be classed as disabled under the Equality Act 2010.
As ‘long term’ specifically refers to an impairment that has lasted or will last for at least 12 months, and could increase or decrease in severity time, it is apt terminology when considering Long-Covid. It will not be relevant for all those afflicted by the illness, however, and each individual employee should be assessed singularly according to their specific circumstances, and the seriousness and nature of their symptoms.
Should an employee be thought to have developed a disability due to Long-Covid, the employer has a responsibility to make any reasonable adjustments that would enable their safe return to work. It’s important to note that any employers not acting appropriately in these matters will find themselves in breach of discrimination legislation.
However, with there still being so many uncertainties surrounding the illness and its prolonged effect on the human body, ACAS is recommending that employers move their emphasis away from defining Long-Covid and instead concentrate on adapting to facilitate possible absences and making operational adjustments so that employees with the condition can continue in their roles.
As with any other chronic illness, we can be relatively confident that those afflicted with Long-Covid will need to take brief, recurrent absences from their posts, as well as longer, more extended ones. These situations should be tackled no differently.
The best course of action you can take as an employer is to develop an open dialogue with employees through which you can mutually agree on how you can most effectively support their return to work when the time is right. This might include looking at alternate shift patterns, more frequent or longer breaks, a phased reintroduction, parameters for monitoring their condition, or even an alteration to job specification. Any changes should only be made with the full agreement of the employee, and, if possible, with the advice of medical or occupational health.
Should there be any real concern about an employee’s capacity to return to work at all, it might be most appropriate to commence a formal capability procedure, although this should only be done once all other options have been exhausted.
The last 12-18 months have intrinsically changed how management teams and workforces engage with one another and the evolving situation with Long-Covid only serves to highlight the ongoing importance of remaining reactive and responsive with your operations.
It could probably go without saying but it’s worth reiterating, that given the fluid circumstances surrounding every employee’s situation, should you have any doubt about how to handle Long-Covid within the workforce, obtain assistance from a qualified employment law team that can evaluate the situation on your behalf and ensure that you don’t make any potentially costly errors.