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03 Dec 2021

International Day of People with Disabilities: Long COVID and employment law

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The United Nations “International Day of People with Disabilities” is held on December 3rd each year. It encourages everyone (people, organisations, agencies, charities) to identify and address the discrimination, marginalisation, exclusion and inaccessibility that many people living with disabilities face. This year the United Nation’s theme for the day is “Fighting for rights in the post-COVID era”. In this context and as employers grapple with the continuing impacts of the pandemic, including staff who have been diagnosed with “long COVID”, we look at key considerations for employers on this topic.

What is long COVID?

For some people COVID-19 can cause symptoms that last weeks, months or longer, after the infection has gone. This is called “long COVID” and typical symptoms include: fatigue; brain fog; insomnia; depression and anxiety; chest pain; heart palpitations; dizziness; joint pain and shortness of breath, amongst others. Long COVID symptoms are likely to affect someone’s ability to work. So, what do employers need to consider?

Is long COVID a disability?

A key question for employers is whether an employee suffering with long COVID is deemed to have a disability. Under the Equality Act 2010 a disability is defined as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day to day activities”. “Long-term” for these purposes means the impairment has lasted 12 months or is likely to last at least 12 months or for the rest of the person’s life.

Whether a long COVID sufferer meets the definition of having a disability will vary on a case by case basis depending on the severity of the symptoms and the resulting impact on their daily activities.

Disability discrimination

If an employee does meet the definition of having a disability, an employer has a legal duty to make reasonable adjustments. Reasonable adjustments are those made by an employer to try to ensure a person with a disability is not placed at a substantial disadvantage because of their disability. In the context of long COVID, the specific adjustment will depend on how that condition affects the individual personally, and the nature and requirements of their work, as well as the resources of the employer. Many adjustments are simple and low cost. For example, if an employee finds that their condition is worse at certain times, an employer could consider adjusting working hours, changing shift patterns or allowing flexible hours. Failure to make reasonable adjustments can lead to a disability discrimination claim.

Employers also need to be aware of any practices, criteria or policies they implement that place employees with a disability at a disadvantage. For example, a company-wide policy that requires employees to be in the office at peak times, and consequently requires rush hour commuting, may disadvantage those suffering from long Covid symptoms such as fatigue or even shortness of breath if they need to commute on a crowded train wearing a mask. Unless the employer can show that policies are a proportionate means of achieving a legitimate aim, they may find themselves on the hook for indirect discrimination claims.

Employers also need to avoid treating employees suffering from long COVID less favourably not just because of the condition itself, but also because of anything arising from the condition. For example, if a long COVID sufferer is frequently on sick leave and faces disciplinary action as a result of sickness absence, this can give rise to claims for discrimination arising from disability.

What practical steps should employers take?

  • Communication
    Take time to discuss with the individual the nature of their symptoms, any patterns they experience (are their symptoms worse at particular times of the day or do they tend to have periodic relapses) and how they feel the symptoms are impacting their ability to work (including the journey to/from work). How do they want managers to communicate with the rest of their team about their condition? Employers need employees' specific consent to share any information about health.
  • Medical input

    Seek input from occupational health specialists and possibly other clinicians, especially as the body of knowledge around such a new condition is ever evolving.

  • Provide support
    Provide a supportive environment in which employees feel comfortable to be able to keep you updated on their condition and have a dialogue around what adjustments may help them. Signpost employees to wellbeing resources, counselling, and employee assistance programmes. Employees suffering from the physical symptoms of long COVID may also experience consistently or intermittently poor mental health; they could benefit from support from mental health first-aiders or champions.

  • Training

    Provide training to managers on how best to handle sensitive conversations surrounding health and how to manage an employee suffering from long COVID. Ensure managers are trained on relevant policies (such as those noted below) and understand them, rather than the policies simply gathering dust.

  • Policies
    Review relevant policies such as equal opportunities, reasonable adjustment, disability or sickness absence policies, to ensure they are fit for purpose, up to date and non-discriminatory.

As the pandemic continues, employers may see continuing numbers of employees diagnosed with long COVID and will need to consider how best to manage, support and accommodate them. If you have any questions on this topic please contact Anne Pritam, Leanne Raven or your usual Stephenson Harwood LLP contact.

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KEY CONTACT

Anne Pritam

Anne Pritam
Partner

T:  +44 20 7809 2925 M:  +44 7946 647 238 Email Anne | Vcard Office:  London

Leanne Raven

Leanne Raven
Senior knowledge development lawyer

T:  +44 20 7809 2560 M:  +44 7827 353 108 Email Leanne | Vcard Office:  London