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Employment essentials explained – Disability & Long COVID

As many of us continue to work from home and/or have opportunities for travel and meeting up restricted, we are continuing to run our essential webinar series for employers to ensure that our clients and contacts remain up to date and equipped to deal with all eventualities!

Our latest seminar focused on disability and Long COVID. The key takeaway points are set out below:


What is Long COVID?

  • Long COVID is a term used to describe the effects of COVID-19 that continue for weeks or months beyond the initial illness. There are currently 7.3 million reported cases of Long COVID.
  • At the moment, there is no universally accepted definition and different organisations are describing it in different terms. For instance, the ONS have used the following definition: “symptoms persisting more than four weeks after the first suspected coronavirus episode that are not explained by something else” whereas NICE describe it as: “signs and symptoms that develop during or after an infection consistent with COVID-19, continue for more than twelve weeks and are not explained by an alternative diagnosis”.
  • Common symptoms include extreme tiredness, shortness of breath, chest pains, problems with memory and concentration, joint pain and dizziness although other symptoms have also been reported. Symptoms often come and go, similar to other conditions such as ME and Chronic Fatigue Syndrome and can last for several months.
  • What is clear is that understanding around this condition is constantly evolving. Indeed, the very latest ONS analysis suggests Long COVID may be less common than previously thought but given that the condition is not fully understood and that there is no universally agreed definition it is difficult to produce accurate figures. HR teams will need to keep on top of developments as more becomes known about this condition.

Is Long COVID a disability?

  • The legal definition of a disability is met where: “A person (P) … has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".
  • Long COVID certainly has the potential to come within this definition, if it is having a substantial adverse effect on a person’s normal day to day activities, such as their ability to get out of bed in the morning, go shopping, read and write, concentrate, prepare food or carry out other household tasks and that effect has lasted or is likely to last for 12 months or more.
  • Whilst work of a particular kind might not be a normal activity for most people, Tribunals can consider the effect of a condition on circumstances which only arise at work. For example, standing for long periods of time (Aderemi v London and South Eastern Railway Ltd), lifting and moving goods (Banaszczyk v Booker Ltd) and night work (Chief Constable of Dumfries & Galloway Constabulary v Adams).
  • In terms of the period of time over which the effect takes place, where the effect comes and goes as can be the case with Long COVID, Tribunals will take into account the likelihood of the effect re-occurring when deciding whether it has lasted or is likely to last for 12 months or more.
  • It is likely that Tribunals will consider cases of Long COVID in a similar way to conditions such as ME or CFS.
  • If an employee with Long COVID does meet the legal test of being disabled, their employer will be under a duty to make reasonable adjustments for them and must be careful not to discriminate against them directly or indirectly nor carry out any act of harassment or victimisation.

Tips for managing Long COVID cases in the workplace

  • Diagnosis of Long COVID is likely to be difficult, at least until more is known about this disease. Involve occupational health and/or the employee’s GP sooner rather than later.
  • Keep records of absence, carry out return to work interviews and remember to consider reasonable adjustments. Remember that symptoms can come and go so bear this in mind when considering what adjustments might be needed.
  • Follow your absence / capability procedures and be proactive in communicating with employees who are suffering from Long COVID.
  • Encourage employees to be vaccinated.
  • Train and educate managers to spot symptoms and proactively manage absence.
  • Remember that symptoms and effects will be different from person to person so each case will need to be considered on its own facts.
  • Check PHI policies to see whether Long COVID or individual conditions caused by Long COVID would be covered under the terms of the policy.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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