Approximately one in every 10 UK citizens who have contracted COVID-19 will go on to face further complications over 12 weeks after the initial infection.
Commonly referred to as ‘long-COVID’, little is understood about why the condition only affects certain people or the degree to which it impacts them. But what is becoming evident is that long-COVID can seriously diminish the health and wellbeing of those suffering from it, to the point at which even the most basic of day-to-day activities become a huge challenge.
This will be a matter of great concern to many employers as the country welcomes more staff back into the workplace following the gradual easing of restrictions, and there will undoubtedly be big questions that need to be addressed about a sufferer’s ability to continuing working.
With reports showing that more than a million people are now experiencing long-COVID in some form, further guidance is needed as to where organisations stand from an HR perspective when tackling this unknown and evolving threat to the workforce.
How do we classify a disability?
Despite there currently being no commonly accepted definition of long-COVID, the NHS advises that debilitating symptoms may continue to affect sufferers for months after the initial virus has subsided, with common complications including joint pain, extreme fatigue, breathlessness, memory problems, soaring temperatures and depression; although the exact time frames involved are at present indefinable given the extraordinary nature of the illness.
What is clear, however, is that long-COVID can have a considerable impact on a person’s physical and mental welfare. As a result, management teams will need to prepare themselves for the fact that a growing number of employees are likely to now be legally classed as disabled due to the severity of their illness.
Under the Equality Act 2010, any person with a ‘physical or mental impairment’ resulting in a ‘substantial’ and ‘long-term’ effect on their ability to carry out everyday tasks will be considered disabled.
The law states that ‘long term’ will usually refer to a condition that has lasted, or will last, for at least 12 months and may fluctuate in seriousness over time. Although this will not apply to all long-COVID sufferers, it’s an appropriate starting point from which each employee should be assessed, with their own unique situation being taken into account.
Notwithstanding the potential for employees with long-COVID to be classed as disabled, ACAS recommends that businesses should focus on making reasonable adjustments to facilitate the employee’s return to work, rather than concentrating on whether or not the employee meets the legal definition of disabled.
Absenteeism due to long-COVID should be treated no differently than if it was due to any other chronic illness, with employees requiring long term or intermittent time off work.
The priority for all employers should be to engage directly with those impacted so that both parties can agree upon how the business can best support a safe return to work.
This might include looking at alternate shift patterns, more frequent or longer breaks, office migration, a phased return or even amendments to job specifications. If possible, the advice of occupational health services should be sought, and the situation should be closely monitored, but at no point should any changes be undertaken without the employee’s agreement.
If, after these discussions, there remains a legitimate concern as to whether an employee will regain the ability to return to work in any capacity, commencing a formal capability procedure might be appropriate, however, this should preferably be the last resort once all other avenues have been exhausted.
Disability discrimination is a complex matter, made even trickier to navigate given the emerging situation with long-COVID. Therefore, if you have any doubts about matters relating to your workforce at this time, expert advice should be taken from an experienced Employment Law team, who can evaluate the situation on your behalf.
Taylor Walton is a renowned regional law firm, with more than 150 dedicated professionals, working from offices in Luton, St Albans and Harpenden, providing a full range of legal services for businesses and individuals, and can offer advice on all employment issues, including those posed by COVID-19.
Taking an informed approach at an early stage will not only help to ensure that you do not make potentially costly errors with your HR processes but will also encourage a smoother return to the workplace for employees, and result in better employee relations overall.