Long COVID: Potential scenarios for HR and how to deal with them
Author: Darren Newman
We set out some possible scenarios that HR professionals may face in relation to long COVID, and explain how they could tackle them.
Scenario 1: Employee returns after coronavirus but has persistent short-term absences
Jack has had coronavirus and has returned to work. While he feels okay most days, he has lingering symptoms, including fatigue, shortness of breath, and achiness. These symptoms have led to a significant number of short periods of sickness absence (one or two days each time), triggering the employer's short-term sickness absence formal review process.
What the employer should do
Dealing with short-term absence
A short-term absence policy generally involves a certain number of absences triggering a series of warnings about the employee's attendance, eventually leading to dismissal (if the absences continue). In such cases the reason for the dismissal will generally fall under the category of "some other substantial reason". This is because the employee is fit for work at the time of the dismissal but their levels of absence mean that their attendance is not sufficiently reliable for the employer's needs.
What levels of absence justify the move to dismissal will of course depend on the circumstances including the nature of the work, the size of the employer and the impact of the employee's absence either on the employer's commercial performance or its ability to deliver a service.
Underlying medical conditions
This approach assumes however that the absences are not linked by an underlying medical condition. Where, as in this case, there is reason to believe that the absences have an underlying cause, then a different approach is needed. Essentially the employer needs to approach the problem on the same basis as it deals with long-term absence.
This means investigating the true medical position either through contact with the employee's doctors or through the use of an occupational health service. More specialist medical advice may also need to be sought where the opinion of a GP or OH practitioner is inconclusive.
The essential question the employer is seeking to answer through such investigations is what level of absence the employee can be expected to have in the future and for how long this situation is likely to last. The employer should also explore what steps can be taken that might reduce the employee's absence levels.
Disability and reasonable adjustments
One additional point to bear in mind is whether or not Jack has a disability within the meaning of the Equality Act (discussed here). The key question will be whether his long-COVID symptom are likely to last for a year or more. This of course depends on a medical assessment and it may well be that, as yet, there is insufficient data to reach a view on this. The employer would be well advised however, to act on the assumption that Jack's condition is a disability and seek to make reasonable adjustments accordingly.
For example, depending on the nature of Jack's work it might be possible to allow him to work from home on days when he is feeling short of breath, so that he does not have to endure a commute that may exacerbate his fatigue. His duties could also be rearranged or made more flexible in order to accommodate his symptoms when he is having a difficult day.
If the employer has given serious consideration to these alternatives and the medical prognosis is that his absence is likely to continue at a seriously disruptive level for a considerable period of time, then it may still be fair to dismiss on the basis of his capability and demonstrate that any unfavourable treatment arising from his disability is justified as a proportionate means of achieving a legitimate aim. The fact that his illness arises from COVID does not require any special treatment.
Scenario 2: Employee becomes very ill from long COVID
Before the pandemic, Alicia had an excellent attendance rate. However, she has contracted coronavirus and has been seriously ill with long COVID since then. The length of absence has now triggered the employer's long-term sickness absence formal review process.
What the employer should do
Dealing with long-term absence
The priority for an employer facing long-term sickness absence from an employee is to take steps to ascertain the true medical position. This should be done in consultation with the employee where possible and will usually involve obtaining a medical report from the employee's doctor. With more complex cases it may be appropriate to instruct an OH professional or medical specialist to prepare a more detailed assessment.
One issue that should be explored is whether there is anything the employer can do to facilitate a return to work. This might involve making adjustments to the nature of the work itself, or allowing the employee to work at home for all or part of the working week. It might also involve a "phased return" where the employee returns to work on a limited basis - not working a full week, or not undertaking a full range of duties - and then slowly returning to a normal working pattern over a period of weeks or months.
It may be clear however, that the employee is simply unfit for work and will remain so until recovered. The key question for the employer then is how long that situation is likely to continue.
Depending on the prognosis, it may become clear - or at least appear possible - that the employee's condition amounts to a disability. Where that is so the employer will need to be particularly careful not to rush into any decision to dismiss and to pay particular attention to whether or not anything can be done to facilitate a return to work.
Statutory sick pay is payable for an absent employee for up to 28 weeks. In addition the employer may operate a contractual or discretionary sick pay policy under which the employee may qualify. In general, an employer is not expected to extend sick pay beyond the period set out in its sick pay policy simply because an employee is absent for a reason related to disability. This is particularly so if the employer operate a generous scheme that provides for an extended period of sick pay over and above the level of SSP.
Following a fair procedure before dismissal
Even if the employee is disabled the employer will not be obliged to hold the job open indefinitely. There will come a point where it is reasonable to dismiss the employee on the grounds of capability. While that will amount to unfavourable treatment because of something arising in consequence of a disability, it will not be discrimination if it is a proportionate means of achieving a legitimate aim.
When that point is reached depends on the nature of the work and impact of the employee's absence on the business. A decision to dismiss should not be taken until the employee has been informed that the employer is considering that option and has been given a fair opportunity to make representations and update the employer on a likely date on which they could return to work.
Scenario 3: Employee returns after long COVID but is underperforming
Daniel has had coronavirus and has returned to work. While he feels okay most days, it soon becomes clear to his line manager that he is not performing to his pre-coronavirus levels and his work is not up to the required standards. Daniel's line manager has an informal meeting with him to discuss performance concerns. Daniel explains that his poor performance is down to the after-effects of coronavirus.
What the employer should do
Identifying the problem
An employer should deal sympathetically with an employee whose performance suffers as a result of coronavirus. However, it is important to have clear information about the nature of the problem. If Daniel's performance is affected by his health - whether long COVID or the mental health consequences of his illness - then ideally the employer should arrange for an occupational health assessment to identify the nature of the problem and what steps can be taken to deal with it. If the assessment indicates that this is likely to be a short-term problem, then the employer should be patient and consider making a temporary adjustment to Daniel's workload or putting measures in place to support him while his recovery continues.
Making reasonable adjustments
If it becomes clear that the performance issues are more long-term then the employer should attempt to identify the specific issues leading to the poor performance and deal with those accordingly. If the problem is fatigue, for example, then the employer might consider making adjustments to Daniel's working pattern to take account of this. Such measures may also go towards meeting the employer's duty to make reasonable adjustments should Daniel's condition be serious enough to amount to a disability. Where that duty is engaged it might even stretch as far as reducing Daniel's workload if that would help him complete his work to a satisfactory standard.
Dismissal for poor performance
Ultimately however the employer is entitled to have an employee perform to an appropriate standard and if that is not happening it will be entitled to engage its performance management process. That would be likely to involve setting out a clear standard of work that Daniel must achieve over a given timeframe and eventually, after at least one formal written warning, terminating his contract with notice on the grounds of capability. Provided the employer has done all that it could to help Daniel reach the appropriate standard, and can show that the standard being applied is fair overall then the dismissal should be fair and not amount to unlawful discrimination.
Scenario 4: Front-line worker becomes very ill from long COVID
Bob worked as a front-line NHS worker for the first 12 months of the pandemic. However, he has contracted coronavirus and has been seriously ill with long COVID since then. The length of absence has now triggered the employer's long-term sickness absence formal review process.
What the employer should do
Illness contracted at work
The concern in this case might be that Bob has contracted his injury while at work. This will not prevent an employer from following its normal absence management process which may lead to Bob's dismissal on the basis of capability. Even when the injury has been caused by the negligence of the employer, that will not mean that the employer must hold the job open indefinitely. Any loss to the employee as a result can be recovered through a personal injury claim.
Of course in reality an NHS employer is likely to go the extra mile in seeking to retain the services of someone who has served in such difficult circumstances. Unless the medical assessment makes it clear that Bob is likely to remain off sick for an indefinite period of time the right thing to do is clearly to give him an extended opportunity to recover.
It should also be noted that under the NHS terms of service, Bob may qualify for industrial injury allowance if he can show that he contracted COVID at work. This would have the effect of topping up his sick pay to 85 percent of his salary for up to 12 months.
Scenario 5: Employee becomes carer for relative with long COVID
Claudia's husband has contracted coronavirus and has been seriously ill with long COVID since then. Claudia works full time, but has been struggling to balance her work activities with her caring responsibilities.
What the employer should do
Time off for dependants
Employees do not currently have a statutory right to time off to provide care for a sick or disabled family member. There is a right to a reasonable amount of unpaid time off to arrange for the care of a dependant when the care arrangements already in place are unexpectedly disrupted. However, this does not seem to be applicable in Claudia's case.
Flexible working requests
It may be that Claudia would consider making a flexible working request to help her balance her commitments. This might involve working from home where she could be on hand if her husband needs help with something - or even a move to part-time working. The employer should certainly try to accommodate any such request if possible.
Under the statutory right to request flexible working the employer can turn down a request if it has a valid business reason for doing so, but a more important issue for the employer is the potential for an indirect sex discrimination claim. It is likely that women are far more likely than men to have to strike a balance between their work commitments and caring responsibilities - even when those responsibilities are for dependant adults rather than children. A failure to make any allowance for employees making such a request could therefore amount to indirect discrimination if the employer was unable to show that the refusal was a proportionate way of achieving a legitimate aim - a much higher threshold of reasonableness than is provided for in the statutory right to request flexible working.
Another option is to consider a period of compassionate leave to allow Claudia to concentrate on caring for her partner for a period of time. There is no legal entitlement to such leave, although some employers do provide for it in their contracts of employment. The employer could also agree to accept a certain level of absence from Claudia for the period that her husband is ill. Such flexibility may help the employer retain Claudia's service by allowing her to remain in her role rather than choose to leave work altogether to care for her husband.
Long COVID as a disability
A disability is a physical or mental impairment which has a substantial and long-term effect on an individual's ability to carry out normal day to day activities (s.6 of the Equality Act 2010).
In the case of long COVID the key requirement is obviously that the effect must be "long term". This means that it must last for a year or be likely to last for a year (or for the rest of the individuals' life if that is a shorter period). Once an employee has had long COVID for more than a year, therefore, it is likely that they will be classed as having a disability provided the symptoms are sufficiently serious to have a substantial effect on their life.
The more difficult question is whether or not someone who has had long COVID for less than a year would be regarded as disabled. It is important to bear in mind that the date that counts is the date of the alleged discrimination. So if an employee is dismissed after having long COVID for six months, the question will be whether at the time of the dismissal the condition was likely to last for at least six months more. By the time the question comes to be considered by an employment tribunal more than 12 months will inevitably have passed and it will be known for certain whether the condition in fact lasted for a full year. However, the question of how long the effect of the impairment was "expected" to last has to be answered on the basis of the facts known at the time of the alleged discrimination and without the use of hindsight.
This means that it is perfectly possible that a tribunal could rule that the condition was not expected to last for 12 months, even though as events transpired it actually did. On the other hand, the tribunal could rule that the condition was not expected to last for 12 months even though the employee made a full recovery soon after dismissal. It all depends on what the medical evidence was at the time of the alleged discrimination.
A further complicating factor is that the fact that the effect of the impairment is expected to last for 12 months does not mean that there must be more than a 50% chance of it doing so. The Equality Act 2010 guidance on matters to be taken into account in determining questions relating to the definition of disability states that "likely" should be interpreted as meaning that "it could well happen".
As medical knowledge about long COVID and the prognosis of those who suffer from it increases, a clear picture may emerge as to whether it tends to have an effect that exceeds 12 months. This may make it easier to determine the prognosis of a particular individual. Until that time the question will have to depend on the best evidence available as to the employee's medical condition at the time of any alleged discrimination.
Finally, it is worth bearing mind that the effect of an impairment is deemed to be continuous if it is "likely to recur". Again the meaning of "likely" in this context is that "it could well happen". This means that an employee whose symptoms of long COVID are not continuous but who seems to have recurring "off-days" of fatigue, brain fog, or shortness of breath may still be disabled if it appears likely that such symptoms will recur periodically over a period of 12 months or more.