Could Long Covid Be Defined as A Disability?

Long Covid

Whilst not formally recognised as disability, the effect long Covid may have on an employee’s ability to carry out their role, may mean it should be classed as such. While most people have heard of long Covid, it is still not fully understood and can impact on an employee’s ability to complete their work. Employers will need to manage long Covid-related symptoms and absences carefully. This is because employees with the illness may be considered to be disabled. Therefore these employees will be protected under the disability discrimination legislation.


What is long Covid?

Most people who are infected with covid-19 experience mild symptoms and can usually expect to recover quickly. However, some people have reported that their symptoms have persisted for weeks or even months after initial infection. This is sometimes called ‘Post covid-19 syndrome’ or more commonly known as ‘Long Covid’.

Symptoms of long Covid are wide ranging, but commonly include; fatigue, breathlessness, chest pain and problems with memory and concentration or ‘Brain fog’, but this list is not exhaustive and people can still experience one or more.

Recent statistics from ONS confirm that almost 1 million people are reported to be living with long Covidsince the start of 2021. 84% of the 1 million believed that they had first contacted Covid-19 at least 12 weeks before, and for 40% of the 1 million, symptoms had lasted as long as a year.

Aside from the practical side of managing employee absence, employees could benefit from legal protection if their symptoms are ruled to meet the legal definition of a disability.


Is Long Covid a disability?

Long Covid is not currently recognized as a disability under the equity act 2010, despite calls by the TUC earlier in 2021. 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 with a physical or mental impairment which has substantial and long-term adverse effects on a person’s ability to carry out normal day-to-day activities must meet the requirements of the following four points to be determined as disabled by a tribunal.

  1. Does person have physical or mental impairment?
  2. Does impairment have an adverse effect on their ability to carry out normal day-to-day activities?
  3. Is this effect substantial?
  4. Is this effect long-term?

Employees with long Covid may be able to say they have a physical or mental impairment but the test on whether that effects their ability to carry our normal day-to-day activities depends on a case by case basis. But, if long Covid has minor or trivial impact on the person’s ability to carry out tasks, the employee is likely to satisfy the second requirement.  The more challenging question for employees suffering from Long Covid is whether this effect is long term, this is because the an illness must last at least 12 months to be considered long term. This is problematic as long Covid is not yet fully understood, with some sufferers saying it lasts longer than a year. The employee’s ability to satisfy this part of the test depends on facts of each individual case.


What does this mean for employers?

If employee has long Covid, employers must ensure this employee is not placed at a disadvantage. Employers must be aware that even if the employee is unable to bring claim for disability discrimination, there is a possibility for an employee to bring other claims where they have protected characteristics. This is because Long Covid has been found to affect certain demographics such as the elderly, woman and ethnic minorities more than others. This opens the door for employees to raise complaints of indirect discrimination if they’re treated to their detriment due to Long Covid.

Cases of Long Covid should be treated no different to any other sickness or absence. This means that employers should engage usual absence management procedures and consider whether these need to be updated to include the effects of long Covid. Employers may also wish to educate their managers on absence management procedures to ensure cases of long Covid are dealt with sensitively and in line with company policy.

In addition, employees with the illness should receive sick pay in usual way and care should be taken to ensure managers keep regular contact with them, employers should also assist employee to access health insurance benefits where appropriate.

If the employee is well enough to return to work, employers should ascertain what symptoms employees have and the effect this may have on their ability to work. Considerations should also be given to what adjustments could be made to help them upon their return, for example, their return may consist of a phased return or home working arrangement.


Long Covid in the future

Medical evidence will be key in Long Covid cases in the future as this will help employers determine whether an employee is likely to be disabled and any adjustments that may need to be made. Employers should also engage occupational health to assist with reasonable adjustments for employees upon their return to work.

If an employer decides to discipline an employee because of claims of Long Covid they should be aware fully of the risks of claims from the employee. It is imperative that the employer, should they decide to take this route, seeks advice before acting.

If you have any further questions or queries about the content above or would like to request a demo for oneHR, please don’t hesitate to contact the oneHR team today.


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