One year on from the start of the pandemic, the scientists and medical professionals are beginning to understand the long-term effects of COVID.
It has been reported that some individuals, who may only have had mild symptoms initially, have been left with symptoms such as breathlessness, fatigue, muscle pains, brain fog, chest pains, persistent coughs, skin rashes, diarrhoea and even heart failure and strokes. The symptoms seem to vary from person to person.
Further, there are also some individuals who have been seriously ill and have been hospitalised for long periods of time.
The question is, therefore, whether individuals suffering from “long COVID” would fall under the protection of the Equality Act.
“Disability” under the Equality Act is defined as:
- A physical or mental impairment;
- That has a ‘substantial’ and ‘long-term’ negative effect;
- On the ability to do normal day to day activities.
If an employee meets this test (“Test”), they are entitled to protection under the Equality Act not to be discriminated against, harassed or dismissed because of their disability.
There are also some deemed disabilities such as cancer, HIV. If an employee suffers from any of the conditions specifically listed in the Equality Act, then the employee automatically has protection under the act and does not have to go through the Test.
Does “Long Covid” meet the test?
Although there is no medical definition of “long COVID” yet, there is no requirement for a definition in terms of the act. Further, whether an ailment constitutes a disability is considered without medical intervention or medication.
As a result:
- If an individual has some or all of the symptoms as set out above (or others), they are potentially either (or both) physical and mental conditions/impairments;
- Depending on the severity, they could also have a substantial adverse effect, if they are prevented from or have difficulty with carrying out normal day to day activities. Day to day activities can be as simple as washing, drying your hair, driving, going shopping, cleaning, cooking, socialising etc;
- The long-term aspect of the test usually requires the symptoms, (not the condition itself or any diagnosis) to persist for 12 months or more, or the rest of the person’s life.
Given that we are now 12 months on from the start of the pandemic, some individuals may be able to provide evidence that it has affected them for more than a year. In any event, a Tribunal would determine, based on a medical report, whether the effects of the condition would be “likely to last” for more than 12 months.
In light of the above, it is possible that an employee with “long COVID” could have Equality Act protection, if they meet the Test.
In our view, if it is not clear that an employee has a disability or not, it is far better for an employer to treat them as potentially having a disability and being protected and, therefore, for the employer to comply with the obligations such as reasonable adjustments. The obligations on the employer at this stage are outweighed, significantly, by an expensive and time-consuming employment tribunal claim for disability discrimination and/or failure to make reasonable adjustments.
Return to work meeting and sickness absence procedure
Employers should ensure that they hold return to work meetings to understand:
- the reasons why the employee was off work;
- whether they are taking any medication;
- whether the medication could affect their work;
- whether they consulted with their GP; and
- whether it is a long-term condition.
An employer should also ask the employee if there are any adjustments which can be made (which are reasonable) to help them and to alleviate the effects of their condition (see reasonable adjustments below).
This process also allows employers to monitor the absences taken by the employee and, if necessary, to take the employee through their sickness absence procedure.
As part of a sickness absence procedure, you may need to obtain medical evidence.
Over the years, we have found that obtaining information from an employees’ GPs is difficult, takes a very long time and rarely results in the receipt of any helpful information.
Instead, whilst it may cost slightly more, we would encourage employers to use an occupational health provider or engage an occupational health doctor or consultant to meet with the employee and produce a report. They may also want to obtain the employee’s GP records to assist them. We find that the reports provided by occupational health specialists are more detailed, more focused on the employer’s workplace and the employee’s duties and responsibilities.
As part of this process, we would ask the doctor to confirm whether in their opinion the individual would meet the “disability” Test.
An employer will need to obtain the employee’s consent to obtain a report and their GPs records and deal with the sensitive information in accordance with the Data Protection Act.
If the employee is likely to fall within the Test, and we would suggest that an employer errs on the side of caution in this respect, an employer has a duty to make reasonable adjustments to assist the employee and reduce the impact of their condition. This could involve, for example, a phased return to work, a later start time, an earlier finish, more breaks, physical equipment etc. Involving the employee in these considerations is suggested.
In addition, an employee may provide a fitness to work certificate from their GP which sets out suggested adjustments, which need to be considered carefully.
As this is a new virus and medical condition, the scientists and medical professionals will be looking into its effects for many years to come and it may be that over time, there is a more specific diagnosis and perhaps medication or other treatments that will be able to assist individuals affected.