Long-COVID: a disability under the Equality Act 2010?
An unexpected consequence of contracting Coronavirus is ‘LONG-Covid’. While many people make a full recovery within a few weeks, a small minority suffer with long-term symptoms from COVID-19, which can impact their ability to work.
Symptoms include extreme fatigue, shortness of breath, brain fog and generalised pain. In some cases, the condition can trigger depression and anxiety and others have experienced issues that are very similar to those that precede ME or Chronic Fatigue Syndrome (CFS). The ME Association estimates that around 10% of those who get the virus experience some form of post-COVID-19 ill health.
The implications of this for employers are both legal and practical; if the symptoms of Long-COVID meet the legal definition of a disability, employees will qualify for protection under the Equality Act 2010. Sufferers may be unable to make a full return to their role and may require additional support. Below is outlined some important information for employers facing cases of Long-COVID in the workplace.
Managing absences
A common trait of Long-COVID is fluctuating or relapsing symptoms, so staff may have both long- and/or short-term absences. These should be managed in line with existing sickness and absence policies and procedures.
Is Long-COVID a disability?
Much is still unknown about Long-COVID. To be regarded as a disability under the Equality Act 2010, Long-COVID would need to be a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out their normal day-to-day activities. While those suffering severely from Long-COVID may meet most of the criteria, it is possibly too early to say they would meet the requirement that it is long-term.
What is long-term?
A condition will be regarded as having a long-term effect if it has lasted for at least 12 months or the period for which it lasts is likely to be 12 months. The term it has lasted for is assessed at the date the discriminatory act took place. This could mean that Long-COVID will meet the requirements if it has lasted 12 months.
The challenge will be if the person has not suffered for 12 months, as they may find it difficult to provide medical evidence that it is capable of lasting more than 12 months at this stage. The ME Association has suggested that for those suffering post-COVID symptoms lasting more than three months, a diagnosis of ME/CFS should be made.
Making reasonable adjustments
If the employee has a disability, the employer is obliged to make reasonable adjustments. If you think an employee may meet the requirements but it has been less than 12 months then the cautious approach is to make reasonable adjustments.
Employees may respond well to a phased return to the workplace, longer breaks throughout the working day or reduced hours. The nature of their role should also be considered and, if reasonable, adjusted with a change to their tasks or simply a change to the equipment they use to carry out work. Time off for medical appointments may also be required. What is reasonable is still dependent on the business, its size and its resources.
Training staff
With all of the above in mind, it is essential that managers are up to date on how to deal with absences, adjustments and remote working to ensure staff with Long-COVID are managed correctly.
There has been a known link between absences lasting more than four weeks and depression, so it is more important than ever, especially with remote working, that managers are trained to know how to manage staff who are unwell.
Manager Training is designed to help managers effectively lead their teams in the right way to ensure their good mental health does not become mental ill health. Other training on effective working from home can equip managers with the skills needed for leading remote workers. In addition, training on Mental Health First Aid (MHFA) will provide staff with the skills and confidence to spot concerns and support colleagues suffering with mental ill health. Loch Wellbeing recommends that all workplaces have at least one trained MHFA member in their team.
Pam Loch is a Solicitor and Managing Director at Loch Employment Law .
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