Could long COVID meet the definition of disability?
While not formally recognised as a disability, the effect long COVID may have on a person's ability to work may mean it should be considered as such. Hollie Ryan, senior associate at Stevens & Bolton LLP, looks at the support employers may need to offer staff with persistent symptoms to avoid legal claims.
While most people have heard of long COVID, it is a new illness that isn't fully understood and can impact an employee's ability to work or result in long periods of absence.
Employers will need to manage long COVID-related symptoms and absences carefully, as employees with the condition could be considered to be disabled and will be protected under disability discrimination legislation.
What is long COVID?
Most individuals experience mild cases of COVID-19 and can usually expect to recover in a couple of weeks. However, some people have reported that their symptoms have persisted for weeks or even months after their initial infection. This is sometimes called post-COVID-19 syndrome or, more generally, long COVID.
Symptoms are wide ranging, but commonly include fatigue, breathlessness, chest pain and problems with memory and concentration or "brain fog". This list is not exhaustive and individuals can experience one or more symptoms. Recent ONS statistics confirm that, of the almost one million individuals reported to be living in the UK with long COVID at the beginning of August 2021, 84% first had (or believed they had) COVID-19 at least 12 weeks previously and, for as many as 40%, one year previously.
Aside from the practical side of managing employee absence, employees with long COVID could benefit from legal protection if their symptoms meet the legal definition of disability.
Is long COVID a disability?
Long COVID isn't currently recognised as a disability under the Equality Act 2010, despite calls by the TUC earlier this year for it to be recognised as such. Nonetheless, long COVID may be capable of constituting a disability under the act if it is able to satisfy the four-stage test.
A person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on the person's ability to carry out normal day-to-day activities. Tribunals consider four key questions to determine whether or not an individual is disabled under the Act:
- Does the person have a physical or mental impairment?
- Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
- Is that effect substantial?
- Is that effect long-term?
Employees with long COVID may be able to establish that they have a mental or physical impairment, depending on their symptoms. The test for whether the impairment has a substantial effect on their ability to carry out normal activities will depend on the facts of each case. Essentially, if the impairment has a more than minor or trivial effect on the individual's ability to carry out day-to-day tasks (i.e. shopping, focusing on tasks, exercise etc.), the employee is likely to be able to satisfy this part of the test.
The more challenging question to consider is whether the effect is long-term, which means it has lasted, or is likely to last, 12 months. This is problematic as long COVID is a new illness and not fully understood. Some individuals have reported that their symptoms have persisted for more than a year, which would be considered long-term for the purpose of the legal definition of disability, but whether the individual can satisfy this part of the test will depend on the facts.
What does this mean for employers?
If an employee has symptoms of long COVID, employers should be careful to ensure that they are not placed at a disadvantage, given the risk that the illness could constitute a disability. Employers should also be alive to the fact that, even if the employee is unable to bring a claim for disability discrimination, there is potential for an employee to bring other claims where they have a protected characteristic. This is because long COVID has been found to affect certain demographics more than others, including older people, women and ethnic minorities. Consequently, employees could raise complaints of indirect discrimination if they are treated to their detriment because they have long COVID.
Cases of long COVID should not be treated any differently to normal sickness absence - employers should engage their usual absence management procedures and consider whether these need to be updated. Employers may also wish to educate their managers on their absence management procedures to ensure that cases of long COVID are dealt with sensitively and in line with the company's policies and procedures.
Employees with long COVID should receive sick pay in the usual way and care should be taken to ensure that managers keep in regular contact with them. Employers should also assist employees to access health insurance benefits where appropriate.
If an employee is well enough to return to work, the employer should ascertain what symptoms the employee is experiencing and the effect this may have on their ability to work. Consideration should be given to what adjustments could be put in place to help them return. This could include, for example, a phased return or homeworking arrangements.
Medical evidence will be key in long COVID cases as this will help the employer determine whether the employee is likely to be disabled and any adjustments that might be reasonable. Employers should also engage occupational health to assist with reasonable adjustments.
If an employer takes the decision to discipline or dismiss an employee because of long COVID-related absence, they should be mindful of the risks of potential claims which could prove costly. Advice should be sought before any such action is taken or if there are any concerns relating to the employer's absence management processes.