Long Covid: an employment law perspective

According to a recent report by the Office for National Statistics (ONS), around 1.8m people in the UK have self-reported long Covid as of 3 April 2022. Long Covid is defined by the NHS as symptoms caused by Covid-19 that last weeks or months after the infection has gone.

The ONS reports that 1.2m of those with long Covid say they have symptoms so severe that it affects their daily lives. Symptoms reportedly suffered include fatigue, shortness of breath, loss of sense of smell and difficulty concentrating.

These statistics mean that while we have may have already seen the worst of the Covid-19 pandemic, there seem to be long-lasting effects of the virus to a significant part of the UK population. It is therefore important to consider these statistics as an employer and understand how this could affect your workforce, if any of them complain of suffering with long Covid symptoms.

Is long Covid a disability?

On 9 May 2022, the Equality and Human Rights Commission (EHRC) issued a statement clarifying that long Covid may be a disability for some people but not for others. Under the Equality Act 2010 “a disability is a physical or mental impairment that has a substantial and long-term effect on someone’s ability to carry out normal day-to-day activities.”

There are only a handful of conditions that are considered ‘deemed’ or ‘automatic’ disabilities – including cancer, multiple sclerosis (MS), blindness, severe sight impairment, severe disfigurements and HIV. For most illnesses, determining whether they are a disability with corresponding protection under the Equality Act requires more complex analysis.

An employment tribunal would consider the effects of long Covid on the employee in question to determine whether it does or does not constitute a disability. Accordingly, some employees with long Covid may have a disability, and others may not.

Nonetheless, there is clearly a risk to employers and- you should exercise due caution in dealing with employees who complain of ongoing symptoms associated with long Covid, as they may be protected from different types of disability discrimination.

An employer’s duty of care

Under the Equality Act, there is a duty of care an employer has to its disabled employees including a duty to not to discriminate (whether directly or indirectly) and a duty to consider reasonable adjustments.

Additionally, long Covid is reportedly most prevalent in females aged between 35 and 49, along with people living in more deprived areas, those working in social care, teaching and education or health care and those with another activity-limiting health condition or disability.

As such, there may also be a risk of indirect discrimination based on other protected characteristics such as sex – if, for example, a woman suffering with long Covid is subject to a requirement (such as working a particular shift pattern) that puts her at a substantial disadvantage due to long Covid, this should be a red flag.

If the female employee can establish that women are more likely to be put at that disadvantage than men employed at the same company, the employer will be liable for indirect discrimination – unless it can be proven that the requirement was a proportionate means of achieving a legitimate aim. It is important, therefore, to consider all these elements and to do as much as possible to mitigate the risk of claims from employees.

What can you do as an employer?

• Consider every employee on a case-by-case basis – do not have a blanket rule for all those suffering with long Covid
• Ensure you listen to employees, understand what they are going through and allow requests for reasonable adjustments where possible. This may include allowing an employee to have more rest breaks, allowing part-time working, allowing flexibility around medical appointments or adjusting an employee’s workload
• Ensure you have a detailed and enforceable sickness and absence policy
• Always ensure processes are carried out properly and fairly, with accurate records kept of all meetings.
• If any doubt, always get legal advice.