|Hello and welcome to the next employment video for 2022. My name’s Paul Griffin and I’m Head of the Norton Rose Fulbright Employment Team in EMEA. Following the ending of the COVID restrictions in England on 31 March 2022 we have seen significant move towards employees returning to the workplace. We have also seen an increase in the number of COVID cases since the beginning of the year. While this strand of the virus may not result in the number of admissions to hospital as the initial strain, we do not yet know the long-term implications on employees’ health. In this month’s video, I am going to consider the implications of long COVID for employers.|
|What is long COVID?||For some people, the effects of COVID can cause symptoms that last for a significant time after they have experienced the infection. Post COVID-19 syndrome, otherwise known as long COVID, refers to symptoms which last for weeks or months after the initial infection. Most individuals will make a full recovery after 12 weeks, but for some employees the symptoms can last longer and this doesn’t seem to be linked in any way to how ill the individual was when they contracted COVID-19. The Office of National Statistics issued a report in February which set out that, as of 2 January this year, an estimated 1.3 million people living in private households in the UK (meaning about 2 percent of the population) were experiencing symptoms which persisted for more than four weeks. The NHS website sets out a long list of symptoms including, extreme tiredness, shortness of breath, problems with memory and concentration, difficulty sleeping, heart palpitations, and depression and anxiety, all of which can affect an employee’s ability to work and cause them to take time off from work as sickness absence.|
|Sickness absence and pay||The usual rules for sickness absence and pay will apply and employers need to be mindful of this.
However, as I’ve mentioned the symptoms of long COVID are not well known and can vary significantly. For some employees the symptoms can fluctuate and be unpredictable. Employers need to review any policies around sickness absence to provide a degree of flexibility. An employee will need to provide a fit note from their GP which will set out whether the employee is able to work. An employer may also want to seek further medical advice such as from an occupational health provider so that they have some understanding of the nature of the illness suffered by that individual. You should also speak to the employee to understand how the illness is affecting them, what impact it may have on their ability to work and what support the employer can provide.
|Does Long COVID amount to a disability?||
A person has a disability and is protected under the Equality Act 2010 if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
'Long term' means either that it will affect them or is likely to affect them for 12 months or longer, and, given the long-term impact of COVID-19 is still largely unknown, this is currently difficult to prove in respect of long-COVID. The substantial adverse effect is treated as continuing for a period if it is likely to recur and, in some instances of long COVID, the individual can be seen to recover and then the symptoms recur. This means that it may not always be possible to know the long-term effect.
'Substantial adverse effect' means that the symptoms have more than just a minor impact on someone's life or how they can do certain things. In the ONS report, which I mentioned, 63 percent of those with self-reported long COVID reported that their ability to undertake their day-to-day activities had been limited a lot. Because it is a new condition and the experiences and symptoms differ between individuals, it is not possible to definitely say that all cases will meet the definition of disability. Employers will need to consider each case on a case-by-case basis.
There have been calls, for example, from campaign groups including the TUC, to treat long COVID as a deemed disability which would give employees suffering from the condition automatic protection. This would mean that it would be considered in a similar fashion to one of the “deemed” disabilities such as cancer or multiple sclerosis and would avoid the individual proving the definition of disability. However, the Government has not indicated any plan to follow this and so anyone bringing a claim for disability discrimination would have to satisfy to the employment tribunal that the symptoms satisfied the definition of disability under the Equality Act.
If the employee is considered disabled under the Equality Act then the employer will need to make sure that they don’t treat the employee less favourably as a result of that protected characteristic. Employers also have an obligation to consider what reasonable adjustments can be made to alleviate any difficulties a disabled employee may be experiencing. Reasonable adjustments for employees with long COVID could include adapting hours of work or allowing employees to work from home or changing the type of work that they are required to carry out. It is possible for any reasonable adjustments put in place to be time limited and so these could be constantly reviewed depending on how the employee’s symptoms progress.
As well as disability discrimination potential claims could arise in relation to other protected characteristics. Research has found that long COVID more severely effects older people, ethnic minorities and women. Employers therefore need to take care to avoid claims of sex, age or race discrimination. Compensation in discrimination cases is not capped and so the potential risk for employers could be significant.
|Return to work||
Acas had produced guidance for both employers and employees on long COVID. The guidance sets out that employers should agree with employees how and when the employer should make contact during any absence and then, when an employee feels able to return to work, the employer should discuss the return with the employee. This discussion should include consideration of whether to get an occupational health assessment, making changes to the workplace or how the employee works, a phased return to work and also what the employee wants to tell others about their illness.
In light of the potential claims that an employee may have, an employer should discuss any return to work with the employee carefully. This means that they may need to get an occupational health assessment and consider making adjustments to ensure that the employee can return to work. In addition, as there is still more to learn regarding the symptoms and impact of long COVID, employers should review their absence management policies and check the terms of any permanent health insurance policies to confirm whether employees with long COVID will be covered.
We are obviously able to advise you should you find yourself in this position and if you would like any further information then please do get in touch.