Long Covid & Disability
With Covid still unwilling to make a welcome exit from the news and our lives, the impact continues to plague employers. The recently detected Omicron variant and the return of measures to combat it, has left businesses once again having to adapt.
Decisions on numbers in the office at the same time, whether client meetings can still go ahead face to face, whether face masks need to be worn in communal areas are all resurfacing and recreating headaches for business owners. There is then the less/more (depending on your point of view) important issue of whether to go ahead with the work Christmas party to contend with.
One further issue that employers will now have to contend with is long Covid and whether it could be a disability. This may on the face of it sound far-fetched and it’s just another scare tactic from a solicitor, but when you consider the requirements needed for a health condition to meet the definition of a disability, it should be on the radar for employers who have staff absent due to the effects of long Covid. A disability is:
- A physical or mental impairment;
- That is long-standing (lasts for 12 months or is likely to last for 12 months); and
- Has a substantial adverse impact on an individual’s ability to carry out normal day to day activities.
The NHS website lists some of the common symptoms of long Covid which include: fatigue, shortness of breath, problems with memory & concentration, difficulty sleeping, joint pain, depression & anxiety.
Taking each element of the definition and applying it to long Covid:
- Physical or mental impairment
Given the nature of the symptoms listed above, it is likely that an individual suffering with the effects of long Covid will be able to demonstrate that they are suffering from a physical or mental impairment.
Given this situation has been going on for 21 months to date, it is possible that there are individuals who have been suffering from long Covid for 12 months or more, which would meet the requirement of it being long-standing. A trickier scenario is someone who has been suffering with long Covid for 4 months. Can it be reasonable to foresee them still suffering in a further 8 months? It will depend on the severity of their symptoms and any medical evidence available. Given the lack of information about covid, medical evidence is likely to be limited and so employers are left having to make a decision whether they consider it likely to be long-standing.
- A substantial adverse impact on an individual’s ability to carry out normal day to day activities
Normal day to day activities includes tasks such as getting out of bed, reading, carrying out household tasks, concentrating.
In all cases, whether an impairment has a substantial adverse impact has to be looked at on a case-by-case basis as conditions can have varying degrees of impact on individuals. It is relatively simple for an individual to show that an impairment has an adverse impact, but it is trickier for them to show that the adverse impact is substantial. Employers who have employees who have been absent for a long period with long Covid should be in contact with those employees anyway as part of ongoing welfare checks, but should also be seeking information on the impact of the condition so that they can determine whether it could be seen as ‘substantial’.
Based on the above, it is hopefully clear how long Covid could, in the right circumstances, meet the legal definition of a disability. If you are an employer who has an employee or multiple employees absent due to long Covid, then you should:
- Treat each person individually and their absences & symptoms on a case-by-case basis
- Follow your absence management procedures, in particular ensuring regular communication is taking place
- Ensure managers are trained on how to manage absence, and specifically on your own procedure
- If someone has been absent for 2-3 months, seek input from the employee’s GP or Occupational Health
- Consider whether any adjustments could be made to assist a return to work