Should Long Covid be considered a disability?

With Long Covid continuing to make headlines, employers will be wondering how to deal with employees who are off on long-term sick or who say they cannot carry out their duties as normal due to this condition.

Employees with Long Covid

The first thing for employers to know is that there is no set definition for Long Covid, but generally it is characterised as a collection of symptoms which continue for four weeks or more after a confirmed or suspected case of Covid-19.

There are many different symptoms and people experience these at different severity and for various lengths of time. Some people have symptoms for weeks, some for many months. Symptoms themselves can span gastro-related problems, respiratory issues and flu and cold-like symptoms. One of the most common longer-term symptoms is fatigue and brain fog.

Employees suffering from Long Covid are therefore likely to be unable to work at all or unable to work as normal.

Can we dismiss employees with Long Covid?

Firstly, it is worth employers knowing that jumping to dismissal is unlikely to be the best solution either legally or practically.

Some cases of Long Covid will probably amount to a disability for the purposes of discrimination law – but not all. This is because of the wide range, severity and duration of symptoms experienced by sufferers. In order to be a disability, the physical or mental impairments need to be ‘long term’ (i.e. has lasted or will last for at least 12 months or can come and go or is likely to last for the rest of the person’s life) and have a ‘substantial’ negative effect on normal day to day activities.

These definitional questions are important, because if Long Covid is a disability, an employee who is disciplined or dismissed in relation to their Long Covid symptoms or absence has a potential disability discrimination claim. These issues are separate to the additional other difficulties of dismissing an employee fairly for the reason of capability, or any potential personal injury claims.

Do we have to make adjustments for employees with Long Covid?

This depends on whether Long Covid is a disability. If so, yes, employers will be required to make reasonable adjustments to help employees with Long Covid avoid any disadvantages posed to them by the employer’s policies and practices. But even if Long Covid is not in itself a disability, it is still more likely to affect older people, ethnic minorities and women, which may mean that a lack of adjustments leads to indirect discrimination issues.

Generally, it would be better in terms of employee relations and rehabilitation for employers to make reasonable adjustments for employees regardless of the fine legal distinctions.

Working out what reasonable adjustments employers should put in place is the more difficult bit. Various studies are still ongoing to better understand and identify Long Covid. Given the different symptoms and uncertain duration of the condition, employers should keep on top of guidance, speak with the employee directly to understand their particular condition and consider involving occupational health also when considering adjustments.

What is suitable will depend on the particular circumstances for that individual and their role. Reasonable adjustments might include a phased return to work, altered duties, altered working hours, more breaks, equipment adjustments or location of working among other things.

Generally, employers should try to be flexible and understanding towards employees to mitigate legal risks but also to support them to recover and get back to full duties as soon as possible.

Unfortunately, until research into Long Covid bears fruit, employers will have to continue feeling their way through this tricky issue. For both employees and employers, increased vaccination and reduced infection rates will hopefully consign this issue to the past one day soon.