Ask the Experts: How should Employers manage cases of Long Covid?
The illness of Long Covid (officially known as 'post-covid syndrome') is becoming the next big issue for some employers. There is significant uncertainty about the illness itself, which presents a real concern for Employers who will have to navigate an entirely new phenomena without knowing how long the illness might last or how deeply some employees may be affected by ongoing and sometimes debilitating symptoms.
In this Q and A session, Danielle Lister, Head of Employment at Chattertons Solicitors, answers some of the employment-related questions that are starting to arise as to how employers might look to manage the issue of Long Covid affecting their workforce.
What is Long Covid?
The National Institute for Health and Care Excellence (NICE) defines Long Covid as “signs and symptoms that develop during or after an infection consistent with COVID-19, continue for more than 12 weeks and are not explained by an alternative diagnosis.”
How many people are affected?
The Office for National Statistics ('ONS') suggests more than 1 million people in Britain have suffered or are currently suffering from Long Covid. This number is likely to rise as infections in the UK continue to increase.
What are the symptoms?
The NHS confirms there are a wide variety of symptoms which can include extreme fatigue, breathlessness, chest pains, problems with memory and concentration, depression and anxiety and joint pain to name but a few. Symptoms can range from the more minor to very severe and can sometimes be completely debilitating for the person suffering.
How long does Long Covid last?
This is part of the problem, as currently experts do not know how long Long Covid might last. ONS data shows that around 385,000 people in the UK are estimated to have been suffering with symptoms of Covid for more than a year.
An Employee has confirmed they are suffering with Long Covid, what is the first thing I should do?
If an employee confirms they are suffering with Long Covid, the first recommended step would be to speak to the employee to understand what their particular situation is and how you can work with the employee to support them; what symptoms they are suffering from, whether they are too unwell to be at work or whether they feel they can undertake work but with some adjustments. Ensure there is an ongoing and open line of communication, and that the employee has the opportunity to speak to their manager or HR team on a regular basis.
Can I ask for more evidence to confirm a diagnosis of Long Covid?
Yes. With an employee's permission, an employer can write to the employee's GP for further information on an employee's medical situation. There is a specific procedure to follow and so if you are unsure, it would be sensible to take legal or HR advice to ensure you follow the correct procedure. Alternative (or additional) approaches can also be considered including an approach directly to the employee's medical specialist if the employee is under the care of a Consultant or other medical professional, or alternatively a referral to Occupational Health can be made.
Is Long Covid a disability under the Equality Act 2010?
Not necessarily – but maybe! Clearly this is not an ideal answer, but there are so many unknowns about this new illness and it affects everybody so differently, that it really does depend on the individual circumstances.
Recently, the TUC has called for long COVID to be recognised as a disability, but there is still a lot of uncertainty. It is the case that employees who have serious and long lasting symptoms of Long Covid could fall into this category. To be considered a disability, the test set down in the Equality Act 2010 has to be met, which is as follows:
"A physical or a mental condition which has a substantial and long-term impact on your ability to do normal day to day activities".
"Long term" for the purposes of this definition means that the condition lasts or is likely to last for 12 months or more. One of the problems with Long Covid at present is that there is very little evidence on the likely duration of this illness, which means deciding whether or not someone is or might be a disabled person when suffering with the effects of Long Covid can be very difficult indeed. The advice to employers therefore is to tread with caution when approaching this question. If the symptoms the employee is suffering with have a substantial impact on their ability to carry out normal day-to-day activities, then the first part of the test is satisfied. The longer an employee suffers with the symptoms of Long Covid, the more likelihood they have of satisfying the second part of the test in terms of the 'long term impact' element. If an Employer is unsure, they should seek further medical information by consulting with the employee's GP or make a referral to an Occupational Health Specialist.
If I don’t know whether an Employee with Long Covid is disabled or not, should I make reasonable adjustments?
It is recommended that Employers err on the side of caution when managing cases of Long Covid, particularly given the uncertainty around the illness at the moment. As such, it would be sensible to consider any requests for reasonable adjustments from employees suffering with Long Covid and make adjustments if it is reasonable to do so. Furthermore, a supportive and accommodating employer is more likely to promote a continued positive employment relationship which will hopefully avoid grievances and/or claims being brought in the Employment Tribunal because an employee feels they have been treated unfairly or discriminated against by the employer.
Is there any official guidance for Employers on how best to deal with cases of Long Covid?
ACAS have produced some helpful guidance on the topic, the crux of which is to treat Long Covid like any other illness. The Faculty of Occupational Medicine of the Royal College of Physicians has also produced some helpful guidance (see below). However, the challenge comes in that Long Covid is not like other illness in terms of the significant variation in both the symptoms and duration of the illness from person to person, together with the fact that it is a very new illness about which very little is known and therefore it is not something Employers are used to dealing with. It is recommended that employer's continue to seek out updates and advice on the issue of managing Long Covid in the workplace. It is expected that the guidance will continue to be developed as the medical world becomes more knowledgeable about the illness and employer's become more used to managing cases affecting their workforce.
As an Employer, what else can I do to prepare for the possibility of managing Long Covid cases in the workplace?
Even without any cases of Long Covid affecting your organisation at present, it would be sensible to consider your approach in the event that the issue does arise, and there are some practical steps that Employers can take to prepare for this:
- Train Managers and HR – ensure the people in your organisation who manage staff understand and are aware of the issues, symptoms and challenges around Long Covid. The Faculty of Occupational Medicine of the Royal College of Physicians has produced some helpful guidance on practical steps for Managers and Employers for dealing with Long COVID.
- Check and update your policies - Re-familiarise yourself with your own Sickness Absence and Equality and Discrimination policies as these may come into play in the event that an employee is affected. Ensure those policies are up to date and are fit for purpose.
- Obtain guidance from Occupational Health – given the significant amount of uncertainty around the illness of Long Covid, it is best to obtain medical advice and guidance from Occupational Health. This will help you reach your decisions, but will also show you are being a prudent and supportive employer in seeking professional opinions before making long term decisions affecting your staff. Failure to obtain medical advice before making key decisions (such as the decision to dismiss because it is felt an Employee is no longer fit to perform the role) will result in a risk to the business in terms of claims of unfair dismissal and/or disability discrimination.
- Consider reasonable adjustments – Although the requirement for reasonable adjustments only legally applies when you are managing an employee who is covered under the disability provisions of the Equality Act, it would be prudent to consider any requests for reasonable adjustments when an employee is suffering with Long Covid, given the significant amount of uncertainty around the illness and the risk an employee could ultimately be considered to be a disabled person.
- Take specialist advice – if in doubt, always take specialist legal or HR advice in managing employment issues. This is particularly recommended where there is a risk of Employment Tribunal claims, which could be the case in situations involving employees who have Long Covid but who feel they have been unfairly treated or discriminated against as a result of their illness.
If you require any assistance or advice in regards to this or any other Employment law matter, please do not hesitate to contact a member of our Employment Law team: