Long Covid as a condition is difficult to define and as symptoms can vary it is not clear whether all cases of long Covid will meet the legal definition of disability.
Introduction
The head of employment policy at the Equality and Human Rights Commission (EHRC) has suggested that organisations should treat their employees who have long Covid-19 symptoms as if they have a disability for the purposes of the Equality Act 2010. The reasoning for this is so that employers do not fall foul of equality law. The TUC and other bodies have asked the government to classify the condition as a disability, but due to the short amount of time that long Covid has been a condition and the changing nature of symptoms, this may be difficult for the government to do.
What Constitutes A Disability Under The Equality Act 2010?
A person is defined as having a disability if-
- they have a physical or mental impairment, and
- the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Substantial, means more than minor or trivial and an impairment will have a long-term effect if:
- it has lasted at least 12 months;
- the period for which it lasts is likely to be 12 months; or
- it is likely to last for the rest of the life of the person affected.
What Is Long Covid?
The National Institute for Health and Care Excellence (NICE) has defined post-Covid syndrome as “signs and symptoms that develop during or after an infection consistent with Covid-19, continue for more than 12 weeks and are not explained by an alternative diagnosis”. Symptoms vary greatly ranging from breathlessness, chest pain, rapid heart rate, ‘brain fog’ (which can include difficulty concentrating and processing information), fatigue, memory loss, joint and muscle pains through to organ damage.
There is still debate about the causes of long Covid as well as its prognosis. Whether long Covid is likely to last for at least 12 months and therefore by ‘long term’, is currently unknown. People with serious symptoms could well be disabled for the purposes of the Equality Act 2010.
How Should Employers Treat A Person with Long Covid?
Although it may not be possible to say categorically whether a person is disabled for the purposes of the Equality Act 2010, a prudent employer will err on the side of caution. They would be wise talk to their affected employees and refer them to Occupational Health to ascertain whether any adjustments are needed to enable them to return to, and remain in, work. In one of my previous blogs I discussed the concept of reasonable adjustments, see https://lincslaw.co.uk/blog/what-is-a-reasonable-adjustment/
If an employer fails to make reasonable adjustments for those employees who are disabled they may be at risk of a discrimination claim.
What Adjustments Could be Made?
With little still known about the condition and its prognosis, it is difficult for employers to make informed decisions about what adjustments may be appropriate for the person affected and what is going to be manageable by the employer. If an employee is suffering with brain fog, for example, they may benefit from having regular periods of concentration followed by periods of rest and from having any audible or visual distractions removed from their working environment. Employees may benefit from assistance with planning and prioritising their work. It is very much dependent on the individual affected and the type of symptoms they are experiencing. That is why it is important for employers to communicate regularly with affected employees and seek guidance from Occupational Health.
Lincs Law Employment Solicitors Can Help You
If you are an employee or employer seeking advice regarding long Covid in the workplace please contact us for a free enquiry. Simply use the contact form, engage in a web chat, email contactus@lincslaw.com or call us on 01522 440512 and we’ll be happy to help.
Kathryn Bolton
Associate
Specialist Employment Solicitor
Lincs Law Employment Solicitors
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