Workplace: Is Long Covid a Disability?
Background
The COVID-19 virus was first identified in China towards the end of 2019 and, a year or so on, has been contracted by around 106 million people worldwide leading to 2.3 million deaths. Whist thankfully many of those who have contracted the virus have fully recovered, there is an increased number of people who have a more prolonged effects.
Fatigue, pain, headaches, breathing difficulties, muscle weakness, lasting fever, anxiety and stress are some of the reported long-term adverse effects of Coronavirus, according to individuals suffering from what is coming to be known as 'Long Covid' also known as 'post-Covid syndrome' or 'long-tail Covid'.
Those who suffer from long-term health conditions may be 'disabled' in law and therefore are protected from discrimination under the Equality Act 2010.
What is Long Covid?
There is a lack of medical clarity about what Long Covid is, its effects and how long it might last, this is obviously because of the which is perhaps unsurprising given the short period of time we have been aware of the virus. Some of the post-Covid symptoms that people have been suffering are mentioned above. According to the NHS, 'increasing medical evidence and patient testimony is showing that a small but significant minority of people who contract COVID-19 cannot shake off the effects of the virus months after initially falling ill'.
There is a new study by researchers at Oxford University which suggests that COVID-19 could be causing lung abnormalities which are detectable more than 3 months after the patients are infected with COVID-19.
Some people are also experiencing symptoms which are very similar to Myalgic encephalomyelitis (ME) or chronic fatigue syndrome (CFS).
In terms of employment law with not knowing how the effects of Long Covid are likely to last it is difficult for employers. There can be difficulties and frustrations on both sides of the employment relationship in a situation where an individual can be fit to work one day but debilitated by their condition the next at short notice.
Is Long Covid classed as a disability under the Equality Act 2010?
A person has a disability under the Equality Act 2010 if they have a 'physical or mental impairment' which 'has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities'.
Looking at Long Covid a sufferer would be able to show that they have a physical impairment which impacts their ability to carry out their day-to-day activities. Whether they are then able to establish that the effect is 'substantial' will depend on the severity of their symptoms. There have been suffers of Long Covid who have reported that they are unable to get out of bed or are breathless after walking down a flight of stairs.
The final part of the test is whether the adverse effect(s) of the impairment are 'long-term', which is defined as:
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having lasted at least 12 months;
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likely to last at least 12 months; or
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likely to last for the rest of the life of the person affected.
This is a question that is going to be especially difficult to answer given that the virus has only been present in the UK since the beginning of last year. While there is currently little medical clarity as to how long the physical effects of COVID-19 are likely to last, the assessment is ultimately a legal determination for the Employment Tribunal to establish considering the specific facts.
A sufferer of Long Covid may also have other conditions i.e. diabetes or Asthma these conditions may also amount to a disability.
What approach will the Employment Tribunal take?
To date we are unaware of any decided cases on whether Long Covid amounts to a disability within the meaning of the Equality Act 2010. However, as the effects are apparently similar to those who suffer with post-viral fatigue, ME and CFS.
What should you do if you have an employee with Long Covid?
Employers with staff that have Long Covid should be mindful of the possibility that they may have a disability, depending on the severity and duration of the effects. This means that treating a Long Covid sufferer less favourably because they have Long Covid or, for example, have high levels of sickness absence or are unable to fully fulfil the requirements of their role, could amount to direct disability discrimination or discrimination arising from a disability.
Employers also need to consider if they need to make any adjustments to assist those employees who are suffering within the workplace.
For employees with Long Covid, potential adjustments might, for instance, include adjusting working hours, regular breaks or permitting employees to continue working from home after lockdown.
Conclusion
If you have an employee who is suffering with Long Covid (or you are an employee affected by the condition) and need further assistance of how to manage health and wellbeing concerns in the workplace, then please contact us on telephone 0116 212 1000 or 01858 445 480, alternatively complete the free Contact Us form and we will get in touch as soon as possible.
