Long Covid and the implications for employers

Paula Cole, partner at UK law firm TLT, advises what employers need to consider from an employment law perspective when it comes to Long Covid

Eighteen months on from the start of the pandemic the UK has reported 9.3 million Covid cases. Of those 9.3 million, the majority will have made a full recovery, however, research has shown that over 1 million people in the UK may be suffering from what has now been termed ‘Long Covid’. Long Covid has been described as ‘symptoms persisting for more than four weeks after the first suspected coronavirus episode’ and symptoms are said to include extreme fatigue, chest pain or tightness, brain fog, dizziness, joint pain, changes to sense of smell or taste, depression and anxiety. But what does this mean for employers in terms of managing illness and absence from work?

Is Long Covid a disability?

Depending on the severity it is possible Long Covid could be a disability under the Equality Act 2010.

The Equality Act 2010 defines disability where someone a) has a physical or mental impairment and b) the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. It is generally accepted that ‘long term’ means the condition has lasted or is likely to last more than 12 months.

Whilst Long Covid is still a relatively new condition and the full effects have not yet been discovered, sufferers have reported long-lasting and in certain cases debilitating symptoms that have impacted their daily lives. In a report published in June 2021, The Trades Union Congress (TUC) made calls for the condition to be classed as a ‘deemed disability’ giving sufferers automatic protection from discrimination. Whilst the Government has not indicated any plans to implement this as of yet, depending on individual symptoms and medical evidence, an Employment Tribunal could find that individuals are disabled for the purposes of the Equality Act and we await the first of those judgments with interest. Employers should therefore take care when dealing with employees suffering from Long Covid to avoid potential claims for discrimination.

Avoiding discrimination claims

Given the possibility that an employee presenting with symptoms of Long Covid may be considered to have a disability, employers should be mindful of how employees who are suffering from Long Covid are treated.

Employees who are dismissed or feel they have been treated less favourably due to suffering from Long Covid may have a claim for disability discrimination.

Some practical steps which can be taken in order to avoid such claims include:

1. Engaging with the employee experiencing the symptoms and discussing how best to support them
2. Obtaining an Occupational Health Assessment
3. Considering whether any reasonable adjustments can be made, including a phased return to work, adjustment to working hours or the type of work carried out, allowing home working or flexible working etc.

As well as claims for disability discrimination, employers should also be aware of the potential for discrimination claims based on other protected characteristics. Certain groups of society have been found to be impacted more by Long Covid, for example, older people, women and ethnic minorities. Consequently, if employees with such protected characteristics are treated detrimentally due to suffering from Long Covid this could also lead to claims for indirect discrimination.

Employees exposed to Covid in the workplace

Employers have a duty of care under the Health and Safety at Work Act 1974 to ensure that, so far as is reasonably practicable, the health, safety and welfare of their employees is protected.

If an employee who has contracted Covid in the workplace is now suffering from Long Covid and unable to work as a result, they may be able to bring a claim against their employer for breach of their duty of care.

There have been calls for the Government to include Long Covid as an occupational disease in the UK for key workers who contracted Covid (and subsequently developed Long Covid) as has happened in other European countries and to introduce a compensation scheme to provide financial support for those suffering from Long Covid.

As yet, there has been no response from Government but it does emphasise the importance of employers (particularly those employing key workers) to take steps to protect their workforce and to engage appropriately with employees suffering from Long Covid.