The National Institute for Health and Care Excellence (NICE) has defined ‘long Covid’ – or ‘Post-Covid 19 Syndrome’ – as ‘signs and symptoms that develop during or after an infection consistent with Covid-19, which continue for more than 12 weeks and are not explained by an alternative diagnosis. It usually presents with clusters of symptoms, often overlapping, which can fluctuate and change over time and can affect any system in the body’. But can long covid be a disability and what does it mean for employers? Here, we look at Can long covid be a disability and what does it mean for employers?
The symptoms of long covid include a cough, breathlessness, fever, palpitations, fatigue, cognitive impairment and joint pain. Although the majority of people infected with Covid-19 recover within a 12-week timeframe, it is estimated that more than one million people in the UK are suffering with prolonged side effects. Employers will therefore be increasingly interested in how to manage this within the workplace.
Long Covid and the Equality Act
Section 6 of the Equality Act 2010 outlines that a person has a ‘disability’ if they have (i) a physical or mental impairment and (ii) which has a ‘substantial’ and ‘long-term’ adverse effect on the ability to carry out normal day-to-day activities.
In the absence of any Employment Tribunal ruling and the evolving nature of Covid-19, there is currently no definitive answer to whether ‘long Covid’ satisfies the above statutory definition.
Nonetheless, an employee suffering ‘long Covid’ symptoms would be likely to demonstrate a physical or mental impairment that impacts their ability to carry out ‘normal day-to-day activities’. For example, an employee suffering with breathlessness and cognitive impairment may struggle to complete day-to-day activities such as concentrating or to walking or talking as easily as they could before.
Satisfying the ‘substantial’ and ‘long term’ requirements will be a more difficult exercise for employees. Determining the ‘substantial’ effect of ‘long Covid’ will be based on the individual circumstances of the case and will depend on the severity of symptoms. Government guidance stipulates that an impairment is considered ‘long term’ if it is likely to last or has lasted 12 months. As it has been more than a year since the pandemic began, an employee could potentially provide evidence that ‘long Covid’ has affected them for this period of time. However, this remains a grey area, as medical experts remain unsure as to the average length of symptoms and their fluctuating nature.
Long covid and ACAS
ACAS has also issued sickness and absence advice for employers and employees dealing with ‘long Covid’. Most notably, when approaching the subject of whether it amounts to a disability, ACAS have stated that ‘it is a good idea for the employer to focus on reasonable adjustments they can make rather than trying to work out if an employee’s condition is a disability.’ The guidance therefore doesn’t answer the question directly but takes a pre-emptive and cautious approach. ACAS appears, indirectly, to consider ‘long Covid’ as a disability by implication with its focus on reasonable adjustments.
If you require further advice on managing long covid in the workplace, or implementing policies within the workplace, please contact one of our employment law experts today.