Cases of “long COVID” in the UK are on the rise. ACAS has recently published new guidance for employers and workers in response to the growing impact of long COVID in the workplace. This guidance highlights the significant effects which long COVID can have on workers, such as fatigue, memory loss and difficulties with concentration, all of which can have a detrimental effect on their ability to carry out their roles effectively. Employers therefore need to plan how they will manage long-term absences and the impact of long COVID.
Is ‘long COVID’ a disability?
As we gather more data on the effects of long COVID, the serious effect it can have on physical and mental health is becoming increasingly clear. For example, a recent study by Oxford University identified a strong link between a COVID-19 diagnosis and subsequent mental health conditions. The new ACAS guidance acknowledges that it is hard to say yet whether long COVID will be a disability but recommends making “reasonable adjustments” to allow for workers who are suffering with the condition, a clear recognition that it may amount to a disability.
A disability is defined under the Equality Act 2010 as a physical or mental impairment that has a “substantial” and “long-term” adverse effect on your ability to do normal daily activities. “Substantial” means more than minor or trivial. “Long-term” means it has or is capable of lasting 12 months or more. Given the array of potential symptoms of long COVID, it is certainly possible that it will satisfy the legal definition of disabled in some cases. Employers need to be aware of this risk and their legal obligation to make reasonable adjustments in order to minimise the risk of disability discrimination.
How can employers manage the risk of long COVID?
The ACAS guidance acknowledges that the effects of long COVID can “come and go”. Practically, this will make it harder for employers to manage in the workplace. However, they need to approach it in the same manner as other long term or intermittent health problems. Do not let absences, whether longer term or frequent short term, run on without discussion. Engage with employees early on regarding their symptoms and hold return to work interviews. Use occupational health to assist with getting employees back to work, managing the condition in the workplace and making any reasonable adjustments.
Whether an adjustment is “reasonable” will depend on the individual circumstances, including the size and resources of your organisation, but it is a relatively high bar for employers and may include measures such as flexible working hours, temporary redistribution of duties, or allowing workers to work from home.
The Office for National Statistics has estimated that around 1 in 10 of those who suffered with COVID-19 have symptoms that last 12 weeks or longer. Given the spread of COVID-19, employers are likely to be continuing to experience the impact of the disease in their workforces for some time yet.