Long COVID – A Guide for Employers

What is Long Covid?

Fatigue, breathing difficulties, pain, headaches, brain fog, insomnia, heart palpitations, muscle weakness, anxiety and stress are just some of the reported long-term adverse effects of Coronavirus, known as ‘Long Covid’.

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”.

The Office for National Statistics estimated in December that one in five people testing positive for COVID-19 exhibited symptoms for five weeks or longer, with one in ten experiencing symptoms for 12 weeks or longer.

In particular, there have been a worrying number of accounts of young, normally active and healthy people suffering from Long Covid, which dispels the ever popular myth that only those with underlying health conditions or the elderly will be severely affected if they contract the virus.

So what does it mean for employers?

Long Covid and the law

For employment law purposes there are significant challenges for employers in not knowing how long the effects of Long Covid are likely to last with growing evidence of the strong similarities between Long Covid and ME, a condition which tends to have symptoms that come and go.

Sickness absence

Symptoms of Long Covid may lead to staff taking lengthy sickness absence or struggling to fulfil all the requirements of their role, with a recent study by the Royal College of Psychiatrists also highlighting that those who have suffered severe symptoms from Covid-19, particularly those who were hospitalised, are at greater risk of developing trauma-related mental health conditions.

There is still much to learn about the effects of Long Covid, which makes the proper management of sickness absence and performance issues arising from illness more challenging.

Disability Law

Those who suffer from long-term health conditions may be “disabled” in law and so protected from discrimination under the Equality Act 2010. To be consider long-term a condition must last or be likely to last more than 12 months.

Employers with staff who are suffering from Long Covid should be mindful of the possibility that they may have a disability, depending on the severity and duration of the effects. This gives rise to a legal duty on employers to make reasonable adjustments to support those staff and even when a condition would not qualify as a disability, employers owe a general duty of care and duty to act fairly in relation to all of their employees.

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 fulfil all the requirements of their role, could amount to direct disability discrimination or discrimination arising from a disability.

What can employers do?

There are various practical steps that employers can take to support employees who are suffering with Long Covid:

• Communication: Communicating and engaging with staff suffering from Long Covid is vital in managing absence or any performance issues that may arise as a result of this. Arranging regular catch ups will allow employees the opportunity to speak openly with their line manager or HR teams about how they are feeling and their ongoing recovery.
• Flexibility: Employers should consider whether there are reasonable adjustments that could be made to help alleviate any problems sufferers are experiencing including phased returns to work, changes to working patterns, on-going home working and providing access to employee assistance programmes or occupational health programmes.
• Educate Line Managers: Employers should ensure that line managers are aware of the importance of applying policies and procedures in a non-discriminatory way.
• Take occupational health advice: Before taking any significant steps it is always prudent to obtain occupational health advice identifying the employee’s long term prognosis and what, if any, steps can be taken to assist the employee.
• Legal Issues: If an employer is considering dismissing an employee who is unable or return to work, then legal advice should be taken to avoid the risk of discrimination or an unfair dismissal claim from arising.

For advice on managing the impact of Long Covid on your business or any other employment law advice please contact Daniel Wilde on 01633 244233 or email wilded@hevans.com