Long covid affects one in five people infected. Many among them may be your employees. Have you got procedures in place to make sure you are in compliance with employment law?
During the covid 19 pandemic, it has emerged that the illness can persist beyond the two weeks of symptoms experienced by most. This experience of the virus is known as ‘long covid’.
Long covid is defined as a wide range of persisting symptoms, including:
- Breathing difficulties
- Muscle weakness
- Lasting fever
The office for national statistics estimates that over a million people are experiencing long covid symptoms. Susan Claws, Chief Executive for ACAS, clarified that “long covid is a relatively new illness and for some people it can be debilitating. For others, its effects are variable and a worker could be fine one day but need to be off work if their symptoms worsen.”
New research suggests that two thirds of people with a previous covid diagnosis develop or relapse from a mental health condition in the six months following diagnosis. This was significantly greater than the rates of mental health issues found in people who had other respiratory diseases or flu. A worrying statistic given the increase in mental health illness seen over the last ten years.This is expressing itself through a sharp rise in tribunals over mental health disability at work.
“Long covid is a relatively new illness and for some people it can be debilitating. For others, its effects are variable and a worker could be fine one day but need to be off work if their symptoms worsen.”Susan Claws, ACAS
What the Equality Act Means for Long Covid
The Equality Act states that any physical or mental impairment that had a substantial and long term adverse effect on a person’s ability to carry out day to day tasks is a disability. Following this definition, many of the symptoms seen in people affected by long covid classify as a disability. To be a long term adverse effect, the long covid symptom has to have lasted at least 12 months. However, if it could be ruled that the symptom will last 12 months, a disability classification can also be made. Both of these are ultimately up to the employment tribunal to decide if a given long covid symptom qualifies.
It is important to understand that long covid is a new condition and will take time to fully understand as it manifests in different severities. It may exacerbate other existing conditions. For an strong management strategy it, is important to communicate effectively with your employee from the outset. There must be an understanding that symptoms are intermittent. For this reason, long covid’s position under the Equality Act compares to myalgic encephalomyelitis (ME) commonly known as chronic fatigue. It relates to the specific experience of employees being fit for work on some days but debilitated the next. The 2009 Chief Constable Dumfries & Galloway Constabulary v Adams case set a precedent for intermittent conditions like ME and now long covid to be classified as disabilities.
Adjustments and Procedures on the Part of the Employer
Under the Equality Act, there is a positive obligation on the employer to make adjustments that can assist the employee. This can take various forms depending on how long covid affects your employee. Some accommodating adjustments to consider are:
- Phased return or full time remote work
- Adjusting the responsibilities of the role
- Workplace assessments
- Occupational health and employee assistance programmes
- Proactive management of absence by referring employees to occupational health
- Ensuring liner managers understand the importance of applying policies and procedures in a non discriminatory way
As an employer, you may be able to make permanent health insurance (PHI) claims on behalf of such employees. Although most PHI schemes require a deferment period, not paying benefits until the employee has been unable to work for a period of time. This is typically six months to a year. There are signs that insurers are beginning to accept long covid claims. Aviva’s covid 19 support page states that ‘employees with COVID-19 infection who are unable to work due to incapacity past the deferred period on their policy are covered. Subject to terms and conditions of their policy.’
Capability Procedure and Dismissal
There exists the unfortunate scenario that even with adjustments in place, the level of absence may be at such a level where reasonable dismissal on the grounds of capability is an option. For this, an employer would need up to date medical advice. You would need to discuss this with the employee with an understanding that dismissal is an option. An employer should make sure that every other procedure has been considered before conducting a capability procedure. This is essential because a dismissal before a full disciplinary or capability procedure could result in an unfair dismissal claim at an employment tribunal.
Long covid is not an uncommon future for many employees. It exists to some extent in one in five of those infected with covid. NHS Chief Simon Stevens announced in October 2020 a £10 million investment in for long covid clinics across England. It is important that you have a clear support procedure and plan for every employee suffering from long covid as their experiences of it may vary. The employer ought to consider all possible accommodating adjustments before considering a capability procedure. However, if the absence is severe enough, reasonable dismissal is an option.
Do you need help writing a capability procedure in relation to absence management? Beagle HR works with you to create bespoke HR strategies, specifically tailored to your business needs.