Q: What is long COVID, and is an employee with it suffering from a disability?
Long COVID is a shorthand term for the long-term adverse effects of Coronavirus. Employees can suffer from poor health for a significant period after an initial COVID-19 infection. Symptoms are extensive, ranging from exhaustion, breathing difficulties and breathlessness, continued fever, anxiety and stress, to muscle weakness, and the inability to walk. Others have heart or neurological problems. Lung abnormalities seem to last many months after infection and there seem to be post-viral fatigue symptoms similar to ME or chronic fatigue syndrome. There is increasing medical evidence that a small but significant minority of people who contract COVID-19 can still be seriously affected months after initially falling ill. As the virus is so new, medical knowledge about the effects of long COVID are still the subject of extensive research.
Long COVID can affect anyone of any age, although women under 50 are 50% more likely to suffer from long COVID than men in the same age group. Risk factors linked to long COVID include age, weight, asthma and ethnicity. So, employers must handle long COVID in an even-handed manner to avoid allegations of indirect race, sex or age discrimination.
In summary, sufferers of long COVID may have a disability although this is untested in the courts. Long COVID is likely to exacerbate a pre-existing condition (for example asthma) so some sufferers are likely to meet the Equality Act 2010 definition of disability, and other protections in the Equality Act may be triggered as well.
To be protected from disability discrimination under the Equality Act 2010 a person must 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. An employee with long COVID who has breathing difficulties and muscle weakness will have a physical impairment which adversely impacts their ability to carry out normal day-to-day activities. That effect will be substantial in some employees and not in others, depending on the severity of their symptoms.
The adverse effect of the impairment must be long-term which means:
• it has lasted at least 12 months;
• it is likely to last at least 12 months; or
• it is likely to last for the rest of the life of the person affected.
As the virus has only been present in the UK since January 2020 the long-term physical effects of COVID-19 are only just starting to be observed over a long enough period. Employers must look at the specific facts of each case but it is starting to look as if there will be long COVID cases that meet the definition for protection as a disability. Employers should assume that employees may be protected by the Equality Act disability definition. Even if long COVID is not proven to be sufficiently long term, at least some employees with it are likely to have conditions which are increased by or triggered by the virus.
Q: How do employers manage employees suffering from the effects of long COVID?
Employers can manage employees suffering from the effects of long COVID in a similar way to employees with other long-term conditions, although some extra considerations may be appropriate.
The usual advice for long term absences entails proactively managing absence and keeping an appropriate level of contact with the absent employee. Managers should follow any long term absence procedures and understand the symptoms and reasons for any absences with the support of any occupational health advisers where appropriate. Employees with long COVID should be entitled to any company or statutory sick pay, in a similar manner to any other employees on long-term sickness absence. However, long COVID symptoms vary so discussions with each employee will be critical to identify how it affects them, to assess the support needed by each individual employee. In addition:
• Up until 30 April employees who are off sick with long COVID could be furloughed, although the furlough scheme is not intended to be used for short- or longer-term sickness absence. Employers can choose when to furlough employees with their agreement. For more information see our FAQs on furlough.
• After normal sick leave provisions employers can consider allowing a phased return to work.
• Other ways to manage employee’s return include temporary or permanent adjustments to working hours and continued homeworking.
• Consider other reasonable adjustments to alleviate the employee’s problems and providing access to occupational health and employee assistance programmes.
• There may be health insurance provision and employers will need to check if employees with long COVID are covered (see below). Some insurers already offer long COVID packages of rehabilitation time and therapy where staff can be referred by employers after an absence of four to six weeks.
Permanent health insurance (PHI)
Some employers have PHI or income protection insurance covering staff on long term sick leave. Normally employees must meet eligibility criteria which can link to being disabled under the Equality Act 2010. Insurance policies may pay out and give full or partial salary when sick pay ends. As long COVID is so new there are no cases confirming it meets the disability definition. However, it is thought that at least some long COVID sufferers will suffer from a disability and be entitled under PHI policies. Long COVID may exhibit related conditions like post-viral fatigue which are disabilities anyway.
Employees with long COVID may have a disability, so employers should consider what adjustments to duties, working from home or working hours could help them return to working or the workplace (once lockdown restrictions end). Flexible working may be needed as people may be able to work on some days better than others, as with those diagnosed with ME. Employers should avoid treating employees less favourably because of their high levels of sickness absence as this could be direct disability discrimination or discrimination arising from a disability.