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Is Long-COVID a Disability?
With the Employment Tribunal’s recent decision to classify an employee with long-COVID as disabled under the Equality Act 2010, many employees and employers wonder when long-COVID classes are a disability. However, the question ‘is long-COVID a disability’ is perhaps not as clear-cut as some news headlines are leading on.
Whether or not long-COVID classes as a disability under the Equality Act 2010 relies on the individual details of the case such as the employee’s personal symptoms, how it impacts their daily life and for how long they are likely to suffer.
The Equality Act 2020 defines a disability as
“physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.
To class as long-term, the impairment must have latest a minimum of 12 months or is likely to last at least 12 months or the rest of the person’s life.
As each case of long-COVID varies from individual to individual, each case must be handled and assessed separately.
What is Long-COVID
- After COVID symptoms usually reduce within 7 days to 4 weeks. However, some people find their symptoms persist for a much longer period. In some cases, symptoms can persist months after the initial diagnosis.
- The NHS has categorised two different types of Long COVID. The first is referred to as ‘Ongoing symptomatic COVID‘. This is where symptoms continue for more than 4 weeks but less than 12 weeks. Secondly is ‘Post COVID syndrome’ where symptoms continue for more than 12 weeks and cannot be explained by another condition.
- The symptoms of long COVID can come and go over time and sometimes get better or worse.
What are the Symptoms of Long COVID?
According to the Office of National Statistics, symptoms of Long COVID affect 3.1% of the population. Symptoms are most prevalent in people between the ages of 35 and 69.
There are many symptoms of long COVID which you can read about here, but some examples are:
- Brain fog (loss of concentration, loss of memory)
- Pins and needles/numbness
- Loss of taste and smell
- Muscle pain/ joint pain/ abdominal pain
- Skin rashes
Recent Long-COVID Case
In a recent Scottish Tribunal case of Burke v Turning Point Scotland, Mr Burke tested positive for COVID-19 in November 2020. At the time, Mr Burke was a caretaker for Turning Point Scotland. Initially, his symptoms were mild but over time he developed severe headaches alongside fatigue. This meant carrying out tasks such as showering, and dressing would require him to lie down and rest from exhaustion. He was additionally unable to carry out household activities such as cooking, ironing, and shopping due to fatigue.
Mr Burke remained off work and his sick pay ceased around June 2021. Following several fit notes and occupational health reports referencing long-COVID and post-viral fatigue syndrome, Mr Burke was dismissed in August 2021. This was on the grounds of ill health. The dismissal letter stated that given the uncertainty around any potential date on which Mr Burke would be able to return to full duties, it was with regret that he was being dismissed.
The Tribunal held that Mr Burke was disabled between 25 November 2020 and 13 August 2021 (the date of his dismissal). His symptoms met the relevant tests of the definition of disability as set out in the Equality Act 2010. Mr Burke’s physical impairment had a large impact on his daily activities. His disability was considered long-term because it could last 12 months or longer.
This hearing was preliminary, discussing whether Mr Burke was disabled and how he can proceed with his claims including his disability discrimination claim. This does not mean the employer did discriminate.
Steps Your Employer Should Take
Employers need to be aware that there is a potential that if their employees are suffering from long-COVID, this can be classed as a disability. Therefore, employers must take the correct steps to make accommodations for these employees. Failing to do so can lead to a disability discrimination claim.
Communicate with your Employee
Take the necessary time to speak to the individual about the nature of their symptoms. Consider discussing:
- Any patterns they experience in their symptoms (are their symptoms worse at a particular time of day, or do they tend to have periodic relapses).
- How They feel the symptoms impact their ability to work (including their journey to and from work).
- How do they want managers to communicate with the rest of their team about their condition, (this requires consent from the employee)?
Seek Medical Input
Seek information from occupational health specialists and possibly other clinicians around the new condition to become more informed.
Provide a Supporting Environment
As an employer, it is your duty to create a comfortable environment for your employees to work in so that they feel they can keep you updated on their condition and discuss work amendments that would help them. Employees suffering from the effects of long-COVID are more susceptible to poor mental health. You can help provide support and resources in the form of:
- Signposting employees to well-being resources such as counselling and employee assistance programs.
- Provide support in the form of mental health first-aiders or champions.
Provide Training for Managers on Sensitive Conversations
Assure that your managers know how to handle sensitive conversations around physical and mental health so that they can better manage employees suffering from the effects of long-COVID. Ensure that your managers are up to date with recent training and policies.
Review Company Policies
Make sure to review any relevant policies such as equal opportunities, reasonable adjustment, disability, or sickness absence policies. It’s important to assure these are up to date, fir for purpose and non-discriminatory. Due to long-COVID only recently being classed as a disability, it is worth reviewing your current policies to make sure long-COVID is accounted for.
Frequently Asked Questions
What if an Employee Feels Able to Return to Work?
Before an employee returns, they should talk to their employer about any support they may need such as:
- Getting an occupational health assessment
- Making changes to the workplace or to how the employee works, such as different working hours or more breaks
- A phased return to work
- What the employee wants to be communicated to their team about their illness
Long COVID and Sick Pay
The usual rules for sickness absence and sick pay apply when someone is off work because of long COVID.
Can I Be Sacked for Having Long COVID?
If an employee is not able to carry out their work responsibilities or is taking off a a lot of time an employer is obligated to see if they can do anything to help. An example of further help may be an additional occupational health assessment to find out if more help is needed.
If all options have been exhausted an employer may consider a capability procedure. If an employer dismisses an employee before carrying out a full and fair disciplinary or capability procedure, the employee can claim unfair dismissal to the employment tribunal.
Legal Advice and Support from Our Employment Law Solicitors
If you have any questions relating to long COVID and long-term sickness absences our employment law solicitors can help you.Get in touch