Employment Law Specialist Angela West considers the challenges long covid will provide for employers
“When Boris Johnson announced the “Roadmap out of Lockdown”, the nation breathed a cautionary sigh of relief that some semblance of normality was on the horizon. With the government’s four steps approach, we will (hopefully) see restrictions ease over the coming months, and businesses and employees slowly getting back to ‘the day job’ as we use to know it.
It is hoped that the success of the vaccine rollout will mean that ‘Step 4’ of the Roadmap will be achievable by the desired date of 21st June, and legal limits on social contact can be eased further. But the Roadmap reminds us that Covid-19 remains part of our lives, and as we move towards a future that is more familiar, it is a fact that the damaging and disastrous effects of Covid -19 will have lasting legacy on many people.
We are all familiar with the ‘recognised’ symptoms of Covid-19, and for those who have unfortunately caught the virus, it is hoped that a full recovery will be made. However, more evidence is coming to light that after overcoming the immediate symptoms and making what was believed to be a full recovery, many are experiencing more longer lasting and debilitating health conditions. ‘Post Covid syndrome’ or ‘Long-Covid’ currently has no medical definition, but reported symptoms include breathlessness, chronic and reoccurring fatigue, muscle pain, brain fog, and in the worst cases organ failure. In addition to this, the mental health of our nation is reported to be in a fragile and precarious state, and people are experiencing Covid related stress and anxiety.
This lasting health legacy will undoubtedly cause significant challenges to employers, as they endeavour to rebuild and navigate their own ‘roadmap’ to economic recovery. So, what should an employer do if an employee reports they have Long Covid? Within an employment law context could such an employee be deemed to have a disability and is there any legal obligation on an employer to make reasonable adjustments?
The Equality Act defines a disability as being a ‘physical or mental impairment which has a substantial and long-term adverse effect on ability to carry out normal day to day activities’.
Given what we already know about Long Covid, a person suffering with the effects of the same is likely to be able to demonstrate they have a physical or mental ‘impairment’ which has a ‘substantial adverse effect’ on ‘day to day activities’. It is important to note that it is not a person’s ability to perform work functions; day to day activities can include being able to concentrate, prepare and eat food, walking or travelling using various forms of transport, getting washed and dressed or simply being able to hold a conversation. This leaves the question of whether the adverse effects of the impairment are ‘long term’. The Equality Act states that ‘long term’ is where the impairment has lasted for 12 months, or likely to last for 12 months (our emphasis).
Until more is known about Long Covid, employers are advised to air on the side of caution when dealing with employees who are either absent from work due to Long Covid, or report that they are suffering the effects of Long Covid. They may have a disability within the meaning of the Equality Act, which could give raise to claims for disability discrimination if they are treated unfairly.
Employers are encouraged to be reasonable but also proactive in making enquiries as to the symptoms and effects on an employee. All cases should be considered individually, and employers are discouraged from taking a ‘one size fits all’ attitude to dealing with such situations. Employers should however be consistent in their approach, and be open to reasonable adjustments to the workplace, even if it is unclear as to whether the employee would have a disability within the meaning of the Equality Act. Occupational health experts should be able to assist in helping employers understand the nature and effect Long Covid is having on an employee and give practical advice on potential reasonable adjustments. Similarly, employees are encouraged to have an open and honest dialogue with employers about ongoing symptoms and work with employers to achieve a united approach in dealing with this unprecedented situation.
So, as we all emerge out of lockdown lethargy, it is worth remembering that a ‘roadmap’ can get you to your destination in many different ways, and everyone’s journey back to a pandemic free existence will be as different and unique as we all are.”