According to NHS guidance on COVID recovery, many will feel better within a few days or weeks and most within twelve weeks. For some, symptoms will last longer, including fatigue, shortness of breath, chest tightness, ‘brain fog,’ insomnia, anxiety and tinnitus. Any or all of which may have an effect on an employee at work and cause absence.
Acas have published guidance on dealing with long COVID. It reminds employers that usual rules around sick pay and absence will apply and that symptoms may come and go over a long period.
In effect, the guidance advises employers to handle long COVID in much the same way as any other illness and absence, by for example agreeing how and when to make contact with the employee, making sure their work is covered and talking about how to support them in returning to work. This may include seeking an occupational report or a phased return. And if the employee is struggling to do their job, to do all the employer can before commencing a capability process and dismissal.
There are also Equality Act and disability considerations. To amount to a disability, a condition needs to have a long term substantial adverse effect on an individual’s ability to carry out day to day activities. There does not need to be a diagnosed medical condition, a collection of symptoms may amount to a disability. And ‘long-term’ means that the condition has lasted (or is expected to last) at least a year, it can come and go, or be expected to last for the rest of the individual’s life. Although long COVID is a new illness, this all means that it can, in some cases, amount to a disability, but not in others, for example if the employee is showing signs of recovery within a year. Employers are not expected to make medical assessments, and are instead expected to seek medical advice, usually from the employee’s GP or consultant or by way of an occupational health assessment and report. Ultimately, an Employment Tribunal will have the final say on whether an employee is disabled in a particular case.
The Acas guidance states that it is best to focus on making adjustments rather than trying to assess whether an employee’s symptoms amount to a disability in a particular case. However, it is likely that employers will want to understand the condition in a particular case and how it is affecting an employee, and as part of this it will get a steer on the likelihood of disability being found in a given case.
If the employee is disabled, then there will be a duty to consider any reasonable adjustments to the role in the usual way. It will be unlawful to discriminate against the employee as a result of the condition. The Acas guidance flags up that it will be important to avoid other forms of discrimination given that women, older people and ethnic minorities have apparently been found to be more severely affected by long Covid.
If you need advice on this topic, please contact Laura Claridge on 01689 887873 or email firstname.lastname@example.org