September 27, 2021
As workers are encouraged to return to offices in greater numbers, employers should prepare for an influx of employees reporting symptoms of Long Covid. Cases are rising in the UK and it is estimated that a significant percentage of those testing positive for Covid-19 go on to develop Long Covid, a debilitating condition with symptoms ranging from fatigue and muscle aches, to breathing-related problems and chest pain. The duration of symptoms varies, with some sufferers recovering after 12 weeks and others continuing to suffer for far longer. While working remotely, it may have been possible for some employees to manage their symptoms privately; however, the requirement to attend the office may prompt them to disclose their condition and seek the support of their employer.
Disabled employees are entitled to protection from discrimination and their employers are under a duty to make reasonable adjustments if the individual is placed at a substantial disadvantage by any of the employer’s rules, policies or practices. For a condition to qualify as a “disability” under the Equality Act 2010, it must have a substantial and long-term effect on day-to-day activities. ‘Long-term’ means it has lasted at least 12 months or is likely to do so. Given that Long Covid is a relatively new condition, there are few reported cases lasting more than 12 months, because often less than 12 months has passed since the onset of symptoms. That said, given the number of reported cases now lasting several months with little sign of improvement, it is likely that, in some cases, Long Covid will pass the legal test and qualify as a disability.
Reducing the risk of claims
To reduce the risk of disability discrimination claims, employers should consider whether any adjustments can reasonably be made to ameliorate disadvantage suffered by an employee with Long Covid, such as reducing the employee’s working hours, changing their duties, or permitting them to work from home. As a matter of good practice, employers should consider whether these adjustments can be made for any employee suffering from Long Covid, even if they are not technically disabled.
Further, if the employee’s condition qualifies as a disability, dismissing them for low attendance caused by the Long Covid may constitute discrimination arising from disability. The employer would need to justify the dismissal as a proportionate means of achieving a legitimate aim, which would include a consideration of less discriminatory alternatives.
Protected groups are disproportionately impacted
Employers should be aware of the risk of employees with Long Covid bringing indirect discrimination claims. It may be possible to demonstrate that certain protected groups are more susceptible to Long Covid (such as women) and, therefore, disproportionately affected by a provision, criterion or practice that disadvantages those with Long Covid (for example, an employer’s requirement for a certain level of attendance). In such a case, the employer would need to objectively justify the requirement and demonstrate that it is a proportionate means of achieving a legitimate aim. Employers should also be mindful that individuals suffering from an underlying disability, such as severe asthma, are more likely to succumb to Long Covid, and taking action against them could constitute discrimination arising from their underlying disability. Again, the employer would need to objectively justify any action taken, including any decision to dismiss.
Identify those jumping on the bandwagon
Given the media hype surrounding Long Covid, there are likely to be individuals who falsely claim to be suffering from the condition in order to avoid work or to avoid returning to the office. The characteristics of Long Covid, including its broad range of symptoms and relapsing nature, may make it difficult for employers to identify who is genuinely suffering and who is simply jumping on the bandwagon. Employers will need to ensure that their absence management procedures are sufficiently robust to wheedle out any malingerers, while being sensitive to legitimate cases. Specialist medical advice is likely to be critical in this context.
Ensure policies and procedures are fit for purpose
With the dawn of Long Covid, employers need to ensure that their policies and procedures are up-to-date and fit for purpose. Policies should signpost staff and managers to relevant resources and be appropriate for a workforce that might be working remotely for some or all of the time (for example, consider how absence reporting mechanisms and absence management procedures may be adapted to a virtual working environment). Policies and procedures should also be appropriate for a relapsing condition, such as Long Covid, where the employee may be fit for work one day but be unable to work the next (absence management triggers may need to be adjusted accordingly). Employers should also consider delivering training to managers on how to manage employees with Long Covid and also those who are falsely claiming to be suffering from the condition.