Long Covid and the law

Of the six million-plus UK residents who have contracted Covid-19 since the start of the pandemic, more than a million have remained symptomatic for more than 12 weeks after being infected. Dubbed ‘long Covid’, the lingering symptoms can vary significantly but may include fatigue, persisting high temperature, breathlessness, cognitive impairment, generalised pain and mental health problems.

With people of working age among the groups most likely to be affected, employers are being encouraged to review their HR position to ensure they are fully equipped to handle the consequences on the workforce.

Disability at work

Because of the acute physical and emotional impact that long Covid can have, those experiencing symptoms may be classed as disabled under the Equality Act 2010.

The act stipulates that a person may be classified disabled if they experience a ‘physical or mental impairment’ that triggers a ‘substantial’ or ‘long-term’ influence on their ability to undertake routine tasks. ‘Long term’ in this context suggests that the individual will either have had the condition or looks likely to be affected by it for at least 12 months, with severity fluctuating over time.

This won’t be applicable for all long-Covid sufferers given the developing nature of the disorder, but it does offer a benchmark for evaluating an individual’s unique situation.

Where an employee is thought to meet these criteria, the employer has an ongoing responsibility to accommodate their absence wherever possible. Employment relations body ACAS proposes that this should include making reasonable adjustments to working practices so that employees with the illness are able to continue in their position. An employer’s failure to make any concessions to facilitate a return to duties may constitute unlawful discrimination and result in financial penalties.

Working practices

As with all chronic illnesses, those afflicted with long Covid will probably require short, frequent absences from work, along with longer, more sporadic ones. Staff with long Covid should therefore be treated in a similar manner to other employees with comparable disorders.

Steps in managing staff with long Covid could include:

• agreeing how and when to be in contact during absence
• monitoring the employee’s condition
• discussing what the employee wishes to say to their team about their illness
• discussing ways of supporting the employee back to work as and when they are fit to return
• obtaining an occupational health report
• making reasonable adjustments to the workplace or how the employee works, eg different working hours
• considering a phased return to work after a period of absence.

Employers should set parameters early given the unpredictable nature of the illness, so that the steps towards a safe, attainable return to work can be reviewed over time.

There are a variety of measures that could make a huge difference for the affected employee and company alike. They include introducing more flexible working hours, offering more frequent or lengthy comfort breaks, a staggered restoration of duties, investment in additional office equipment, relocation of desks, or even modification to job specifications.

However, an individual’s working conditions should never be changed without the full agreement of the employee. Where necessary, seek the support of medical or occupational health professionals.

If after this there is still concern as to whether an employee will ever be fit to return to work in any capacity, initiating a formal capability procedure may be necessary, although this step should be taken only as a last resort.

The extraordinary nature of long Covid may give rise to HR inconsistencies that need to be handled with sensitivity. If in doubt, seek professional advice.