Long COVID: Who does it affect, is it a disability – and what are the risks for employers? Five big HR questions on the condition answered
There’s still a lot we don’t know about long COVID and its prognosis, making it hard for employers to properly support staff and manage the potential impact on the workforce.
Here are the answers to five questions for HR and managers about the condition…
- What is long COVID?
There is a lack of medical understanding and certainty around what constitutes long COVID and why certain people continue to have adverse symptoms after contracting the virus, compared to the majority who seem to fully recover after a few weeks.
According to the National Institute for Health and Care Excellence (NICE) and the NHS, long COVID is “signs and symptoms that develop during or following an infection consistent with COVID-19 which continue for more than 12 weeks and are not explained by alternative diagnosis”.
There is no test to diagnose, instead the condition is characterised by a common set of symptoms. They greatly vary, but the most common side effects are fatigue, post-exertional malaise – where health worsens after physical or mental exertion – and brain fog. Long COVID has drawn comparisons with chronic fatigue syndrome, a post-viral condition diagnosed by unexplained symptoms including tiredness. Similarly, the condition appears to be unpredictable in its impact as an individual can feel fine one day and unwell the next.
- Who does long COVID affect?
It not only affects the elderly and those with pre-existing medical conditions, but it can affect young and previously healthy individuals. Despite that, there’s evidence to show that being older, overweight, female and having asthma are risk factors and that ethnic minorities are disproportionately impacted, although there is debate in medical literature as to why this is the case.
The exact number of long COVID sufferers are unknown but findings from the ONS show that between April 7, 2021 to June 13, 2021, 6.2% of adults self-reported that they have experienced it since the start of the pandemic. The number of impacted individuals is smaller than previously feared but clearly this still impacts a considerable number of people in the UK and subsequently the workforce.
- Can long COVID be classed as a disability?
Whether or not it is classed as a disability has so far not been tested in the courts. However, disability-related cases are often fact-specific so the outcome would need to be assessed on a case-by-case basis and application to the Equality Act 2010.
The Equality Act 2010 defines disability as a physical or mental impairment which has a “substantial adverse effect on a person’s ability to carry out normal day-to-day activities”. It also says it must be long-term – meaning that it has lasted for at least a year – or is likely to last the rest of a person’s life.
For a long COVID sufferer to be classed as disabled, they would need to meet each element of the test.
The first part of the test would clearly be met, the symptoms in most cases would amount to a physical impairment, but whether an individual would meet the second and third requirement would depend on the factual circumstances of each case. As we know, symptoms of long COVID can vary greatly from milder cases such as loss of taste and shortness of breath to the more extreme symptoms such as extreme tiredness, organ failure and even depression and anxiety, which would meet the hurdle of a substantial adverse effect.
The duration an individual suffers from long COVID is also fact-specific, but it seems from stories in the media that it’s capable of lasting over 12 months, which would meet the third requirement. It may be difficult to analyse in each specific case whether the condition is likely to last at least 12 months, as individuals report that the severity of their symptoms can increase and decrease over time. While there is no legal authority on this, case law has shown that ME can be classed as a disability despite the variable symptoms which suggests long COVID would be treated the same.
- Are there any employment risks that businesses and HR departments should be aware of?
Yes – in short, failing to fully listen to and act on health concerns highlighted by employees can be seen as discrimination if you have not made efforts to make reasonable adjustments.
Employers should be mindful that individuals with long COVID may be recognised as disabled under the Equality Act 2010 depending on the duration and severity of their symptoms. This means that if a member of staff is put at a disadvantage or treated less favourably because of their disability then this may amount to disability discrimination and that they can claim compensation for the alleged mistreatment, which is costly to defend and/or pay out.
The Equality Act 2010 also protects individuals from discrimination arising out of a consequence of a disability. For example, if an employer penalises an employee because of their high sickness absence related to long COVID, this could again amount to discrimination. ACAS advises businesses to treat the condition as any other illness, however it is important to be mindful that, unlike other illnesses, it is still relatively new and with variable symptoms, so it is prudent to exercise caution when dealing with sickness absences.
Women, elderly and ethnic minorities have a higher probability of developing long COVID which may put employers at risk of indirect discrimination claims if they have a policy, practice or criteria which inadvertently impacts them more than other groups.
Long COVID can be a freestanding condition or arise out of, or lead to, a connecting medical condition. In either case, employers should consider whether an individual’s medical condition would pass the Equality Act 2010 disability test and be afforded protection.
Considering the area of reasonable adjustments, an employer has a duty under the Equality Act 2010 to make reasonable adjustments to premises or working practices to help disabled workers.
The symptoms are varied so it is likely to be hard in practice for employers to make informed decisions on what adjustments are likely to be the most appropriate to support affected staff. We recommend leaders err on the side of caution and take steps to find out what adjustments would be suitable by engaging with an occupational health provider where possible to understand what adjustments would be best suited to an individual’s job role.
We also suggest having a conversation with the affected individual about the types of support they may need – as they probably already have an idea of the sorts of adjustments that would be useful to support them. Examples of this could include: continued homeworking to reduce travel time, varying working hours, access to employee assistance programmes, occupational therapists or adopting a phased return to work after a long-term absence.
Often, the cost of recruiting and training a new employee is more than the cost of allowing existing employees time off and ensures the business retains the right talent, so there is certainly a benefit in making adjustments.
- What are the key recommendations for firms factoring long COVID into their plans?
Firstly, be flexible when it comes to reasonable adjustments and seek advice from occupational health to better understand the condition and how to support the individual.
Secondly, plan for higher absences. The duration of long COVID is currently unknown and an individual may be absent over a short period, or it could be a chronic condition. Leaders and HR should proactively manage higher absenteeism in the workforce and facilitate long term solutions to support the individual who may be considered disabled.
Next, build up line managers’ and the HR department’s knowledge. These two are often the first point of contact if someone needs to discuss health concerns or a change or adjustment to their work or working hours. Line managers and HR should be educated on how they can sensitively support sufferers of long COVID and deal with cases under existing policies and procedures in a fair and non-discriminatory way.
Be sure to encourage open communication with affected staff if they are struggling. Employees with a problem should be encouraged to ask for help so the business can better support them. Line managers should schedule regular meetings to evaluate the adjustments in place and consider the need for increased support if their symptoms change over time.
Finally, exercise caution when it comes to dismissal conversations. Chronic bouts of sickness or poor performance would be considered a capability issue and employers should take reasonable steps to investigate the true medical position and prospects of rehabilitation or adjustments before deciding to go down a dismissal route.
If an employer does decide to go down this route, maintaining records will strengthen their ability to respond to any discrimination questions and defend potential claims. It is therefore important to keep a record of conversations, adjustments put in place and any detrimental effect an employee’s absences are having on the business so the employer can better justify its actions.
