Tim Jones, Head of Employment at Higgs LLP, looks at the evolving law around long Covid– and how employers should treat people suffering with the condition.
The Covid-19 pandemic has produced many unique and challenging issues for employers, from furlough to self-isolation. One area which has come to the forefront as the pandemic has progressed is the possibility of having ongoing or intermittent symptoms, commonly known as “long Covid”. This has raised a question as to whether employees with long Covid would be protected under the Equality Act 2010.
Disability is one of the protected characteristics under the Equality Act 2010. Under the legislation, a disability is defined as a mental or physical impairment which has a long term and substantial adverse impact on someone’s ability to carry out normal day-to-day activities. For an impairment to be “long term” it has lasted for 12 months or is likely to last 12 months.
Long Covid can result in symptoms that are continuous or intermittent for a period of over 12 weeks. The symptoms include fatigue, shortness of breath, brain fog and insomnia. While it has not been considered in the Employment Tribunal to date, it is easy to see how the definition of disability under the Equality Act 2010 may be met with many of the symptoms impacting day-to-day activities like concentrating or heavy lifting. Further, some employees who suffered with Covid at the start of the pandemic may be able to establish that they have suffered for 12 months already, thus satisfying the “long term” element.
If long Covid does satisfy the definition of disability, employers cannot discriminate against any employee who is suffering with Long Covid, whether directly or indirectly. Further, employers are under a duty to make reasonable adjustments.
Acas guidance confirms that employers should focus on any reasonable adjustments that can be made to assist the employee rather than questioning if the employee has a disability. Employers should consider seeking medical advice from Occupational Health or the employee’s GP before discussing the medical advice with the employee. The medical advice will help employers understand the nature of the symptoms, whether they have or are likely to last for 12 months and any reasonable adjustments that could be made. This may result in alterations to working hours, their role or their working environment. Employers should also ensure they do not include days absent due to a disability when pursuing the company’s sickness absence procedure.
To limit the risk of a discrimination claim from an employee, employers should review their current practices and provide line manager training on Long Covid and the associated risks.
Further research into the medical position of long Covid is ongoing, including research into the initial suggestion that this disproportionately affects women and ethnic minorities (which are also protected characteristics under the Equality Act 2010). We recommend specific employment law legal advice is obtained when dealing with an employee who may have long Covid.
