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Managing the effects of long COVID in the workplace

As we move through 2021, and forward through the pandemic, employers are increasingly having to consider the legal implications of employees suffering from long COVID.

Long COVID – the condition

Whilst research into long COVID is ongoing, knowledge is still developing, and a number of definitions have been utilised, the NICE guideline scope[1] defines the condition as ‘signs and symptoms that develop during or following an infection consistent with COVID-19 which continue for more than 12 weeks and which are not explained by alternative diagnosis’. The guideline advises that the condition usually presents with clusters of symptoms, often overlapping, sometimes changing over time, affecting any system within the body in addition to generalised pain, fatigue, persisting fever and psychiatric problems. ScienceMag states that ‘the list of lingering maladies from COVID-19 is longer and more varied than most doctors could have imagined’.[2]

The ONS estimated that 1.1 people in the UK were reporting symptoms associated with long COVID at the beginning of March 2021. It is likely that the population affected will increase and as there is increased clinical diagnosis of long COVID, but no quick fix medicine, the question of management of the condition in the workplace will become a question more employers have to grapple with.

 

Importance of general awareness

All employers would be advised to make themselves aware of long COVID and the effects so to recognise signs and symptoms when displayed by an employee, then to respond early and reasonably. The most common reported symptoms include[3]: fatigue, breathlessness, chest pain, dizziness, sickness, headaches, cough, and cognitive impairment or ‘brain fog’.

An employer who fails to act reasonably is exposed to the risk of a suffering employee who has more than two years’ continuous alleging that the treatment of them constitutes a fundamental repudiatory breach of the implied duty of mutual trust and confidence, entitling them to resign and claim constructive dismissal in reliance on s.96(1)(c) Employment Rights Act (‘ERA’) 1996. This risk is present whether or not the employee might be deemed disabled.

 

Long COVID as a disability

It is likely that many sufferers of long COVID will be considered disabled within the meaning of section 6 of the Equality Act (‘EqA’) 2010, but whether a particular individual will be is fact sensitive.

A person has a disability under section 6 if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Considering the constituent conditions to be considered[4]:

  • Although sufferers report different symptoms most would likely be able to demonstrate a ‘physical or mental impairment’. The term is intended to have broad application and ordinary meaning.[5]
  • The ONS advises that, in March 2021, an estimated 674,000 people reported that their symptoms had negatively impacted on their ability to undertake their day- to-day activities. It is likely many sufferers of long COVID will be able to establish the impairment affected their ability to carry out ‘normal day-to-day activities’. Effects of impairment can fluctuate and still satisfy the requirements.
  • Substantial’ is more than minor or trivial[6]. Whether the adverse effect is substantial will depend on severity and comparison of a persons' ability to carry out normal day-to-day activities with the ability s/he would have had if not impaired. As there is increasing appreciation that the condition can be debilitating many are likely to satisfy this.
  • Long term’ means lasted for at least 12 months, likely to last for at least 12 months or it is likely to last for the rest of the life of the person affected[7], with ‘likely’ meaning ‘could well happen’[8]. It can include recurring conditions.[9] The question is objective based on all contemporaneous evidence, not just that which might be before an employer and refers to the situation at the time of the alleged act(s) of discrimination[10]. Whilst COVID-19 is still a relatively new illness, and it is only 16 months since the first reported UK case, medical and media reports suggest that the effects for many, particularly those who have been hospitalised will last beyond 12 months and thus they will be able to demonstrate that they fall within the definition of disability.

 

Disability discrimination

An employer is obliged not to discriminate against a disabled employee by subjecting them to a detriment[11] and/ or dismissing them.[12] In managing employees suffering from long COVID sections 15 and 20 of the EqA are most likely to be engaged.

Section 15 protects against unfavourable treatment because of something arising in consequence of disability. An employee may be struggling with absences or shielding and treated unfavourably in consequence. Unless the employer can show that the treatment of that employee is a proportionate means of achieving a legitimate aim it will be deemed discriminatory.

Section 20 is the duty to make reasonable adjustments. Any provision criterion or practice (‘PCP’) which puts a disabled person at a substantial disadvantage is subject to the duty to take such steps as is reasonable to avoid the disadvantage. A requirement for employees to be on their feet for ‘x’ hours on a shop floor, to work from a particular workplace, to meet a specific target on a production line, could put an employee who is suffering from long COVID, and is easily fatigued for example, at a substantial disadvantage. What steps are reasonable to avoid a disadvantage will not be the same for every employer and employee suffering from long COVID. The particular disadvantage in each case will need to be considered by an employer with a focus on the practical result and effectiveness of the measures that can be taken[13]. Adjustments that could be considered to avoid the disadvantage might include: implementing work rotation, working from home, flexible working, reduced hours, increased rest breaks, changes to work stations, altered or relaxed targets, a mentor or buddy.

 

Practical recommendations

As well as increasing awareness of long COVID, to reduce the chances of facing related Tribunal claims from suffering employees, which claims are bound to surface over the next few years, employers are advised to act with caution, treading carefully. This may involve: ensuring sickness absence policies are up to date; holding return to work meetings to be satisfied employees suffering from long COVID are fit enough to return to work and their support needs are identified; signposting resources; ensuring occupational health referrals are promptly made; carrying out risk and/ or workplace assessments; and most importantly consulting with the employee in identifying any reasonable adjustments and then implementing them to avoid any substantial disadvantage that might arise.

 

This article was written by Nicola Twine who is a member of Parklane Plowden's Employment team.

 

[1] Also known as post-COVID syndrome

[2]https://www.sciencemag.org/news/2020/07/brain-fog-heart-damage-covid-19-s-lingering-problems-alarm-scientists#:~:text=The%20list%20of%20lingering%20maladies,lungs%2

[3] https://www.nhs.uk/conditions/coronavirus-covid-19/long-term-effects-of-coronavirus-long-covid/

[4] Adopting the approved ‘step’ approach but recognising each question is not required to be considered in sequence: J v DLA Piper IL LLP [2010] ICR 1052.

[5] McNicol v Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498 CA

[6] S.212(1) EqA

[7] Para 2 Sch 1 EqA

[8] SCA Packaging v Boyle [2009] IRLR 746

[9] Para 2(2) Sch 1 EqA

[10] Confirmed in Tesco Stores Ltd v Tennant UKEAR/0167/19/00

[11] S.39(2)(b) EqA

[12] S.39(2)(c) EqA

[13] Royal Bank of Scotland v Ashton [2011] ICR 632, EAT

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