Julie Bann and Victoria Smith consider how Long Covid may be treated under existing employment laws and provide compliance guidance for employers.
Does Long Covid qualify as a disability under the Equality Act 2010?
Whilst we are all somewhat returning to the old normal that existed before the “new normal” over the last 18 months, with masks now optional and social distancing requirements removed, the medical impact of COVID-19 continues to have a lasting impact on a number of people.
“Long Covid” is a term whose meaning is ever developing as scientists learn more about the effect of having caught COVID-19. It is thought currently that around 20% of people who contract the virus go on to suffer with Long Covid. According to the Imperial College London-led REACT-2 study, this means that more than 2 million people are still suffering with symptoms after 12 weeks.
What is Long Covid?
As with the symptoms of COVID-19, the symptoms of Long Covid vary between individuals. Generally, people suffering from Long Covid have suffered memory problems, tiredness, dizziness, pins and needles in limbs, difficulty breathing and heart palpitations, all of which often go on to cause depression and anxiety. Evidence shows that there is no ‘one size fits all’ approach to symptoms and new symptoms are being experienced as we learn more about the disease.
If an individual is suffering with symptoms 12 weeks after they first contracted the virus, they are then classified as suffering with ‘Long Covid’.
It has been found that certain demographics are more susceptible to suffering with the lasting effects of Covid after 12 weeks. Current research indicates that women, people who smoke, people who are overweight, people from deprived areas, and those in hospital are the most vulnerable. Equally, for every 10 years of age, the chance of developing Long Covid increases
Will it qualify as a disability?
For a medical condition or illness to qualify as a disability it must be:
• A physical or mental impairment; and
• Have a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities.
Both requirements must be met for the individual to gain protection under the Equality Act 2010.
Addressing these points in turn, tribunals tend to be more focused on the effect of an “impairment” rather than the medical label given to it.
So, regardless of what symptoms are added or removed from Long Covid, the important point to assess is the effect that is has on the individual.
There has been extensive case law as judges deliberate over the meaning of “substantial adverse effect,” but they have set the bar quite low to meet this threshold.
The effect must be more than merely trivial for it to qualify. It is likely that most, if not all, of the symptoms listed above would be considered more than trivial.
The long-term requirement of the definition is the potentially the most divisive. What makes Long Covid so unique is that the symptoms may come and go, causing someone to deteriorate and then improve fairly frequently.
According to case law, “long term” usually means having lasted for more than 12 months. Long Covid is a relatively new medical diagnosis and so there are few people who will have suffered with it for more than 12 months at present.
It is important to note that an individual does not have to wait 12 months whilst they have a condition for it to qualify under the Act. The Tribunals will assess whether, at the point in time they are deciding the case, whether it is likely to last 12 months.
Risks of dismissing someone who has Long Covid
Employers should always proceed with caution before taking the decision to dismiss an employee who may potentially have a disability, and in any event may only contemplate doing so after following a thorough absence management procedure.
Accordingly, to prepare for managing the long-term or erratic sickness absence of employees with Long Covid, employers should ensure that their absence management policies are up to date and are “pandemic” fit for purpose.
Specifically, they need to be alive to the idiosyncrasies that COVID-19 has caused. HR should also work with managers to ensure that communication with employees suffering from Long Covid is kept up to ensure that employees remain engaged, and HR are informed of and understand the reason for, duration, and pattern of the sickness absence and what support may be required.
When dealing with any employee with repeated absence or long-term sickness, one of the first steps employers should take is to refer them to occupational health to understand more about their condition, the likelihood and timing of recovery and the adjustments that could be made to a facilitate a return work or more frequent attendance.
A potential difficulty for employers managing an employee who is suffering from Long Covid is whether Occupational Health will have sufficient expertise to make informative assessments given
the newness of the condition. It will certainly be an extra factor to consider when evaluating how to proceed.
Where there is doubt, there may be a need to obtain a medical report from a more specialist doctor.
As stated above, a unique feature of Long Covid is that symptoms come and go, meaning that sufferers are likely to be able to attend work some days, but not all days. This could potentially be very disruptive to the workforce, but whether that would be enough to legally justify a dismissal is another question.
If dismissal is a potential outcome being contemplated, it is essential that employers follow a full and thorough capability process to the letter, supported by accurate and up to date medical evidence, including occupational health assessments.
It is also essential for employers to ensure, prior to any dismissal, that all potential reasonable adjustments are considered and, where reasonable, implemented, potentially including redeployment and even a trial of redeployment before a decision to dismiss is taken.
This is a complex area of law, and what will be fair and reasonable in each given situation is fact specific. Accordingly, focused professional advice should be sought at the relevant time.
How do you manage employees’ anxiety about returning to the workplace?
Further to the removal of lockdown restrictions on 19 July 2021, most employers are expecting their employees to return to the office for some, if not all, of their contractual working hours. But what should an employer do if employees have concerns about working from the office?
1. Comply with the statutory and common law duty to provide a safe place of working and government guidance, “Working safely during the Coronavirus (COVID-19).”
After almost 18 months of the Government mantra “hands, face, space,” it won’t come as surprise to anyone that employers need to provide a COVID-19 secure place of work; which essentially means conducting thorough risk assessments and doing everything practically possible to minimise the risk of COVID-19 being transmitted in the office environment.
The key actions to take are set out below:
- Complete a COVID-19 specific risk assessment or assessments, with consideration of further measures that need to be taken in relation to employees who require additional measures to protect them. Risk assessments should always be in writing, but businesses with more than 50 employees should publish the risk assessment on their website;
- Ensure the office space is well ventilated;
- Ensure the office space is thoroughly cleaned regularly, with particular care being taken towards touch points;
- Give employees the discretion to wear masks if they wish whilst at their desks and recommend mask wearing in communal areas, particularly those that may become crowded;
- Encourage staff to take lateral flow tests before coming into the office;
- Require staff who have COVID-19 symptoms to work from home and send home anyone who becomes unwell at work with COVID-19 symptoms; and
- Recommend that staff are vaccinated.
2. Phase a return to the office
For many employees a return to the office, with possibly a long commute thrown in, may itself be a shock to the system before they have even turned their mind to anxieties regarding COVID-19. Recognising this and proposing a phased return to the workplace, with a gradual build-up of hours worked in the office is likely to ease any anxiety (or general disgruntlement about a return to the old normal) and pay dividends in the long run.
3. Consult and engage with your workforce.
The importance of listening to and talking to your staff must not be underestimated. Good communication is the golden ticket to a happy workplace. Subject to specific circumstances, employers should consult either directly with staff, employee representatives or a health and safety representative selected by a union about the health and safety aspects of returning to the office following the easing of restrictions.
Furthermore, employers also need to understand the employees’ overall feelings/apprehensions about returning to work and consider what additional support can be put in place to help staff manage specific anxieties.
For some workers this might be further adjustments such as allowing them to avoid key commuter times, offering additional parking to minimise the use of public transport, additional weekly supervision to just talk, access to counselling via an Employee Assistance Programme or allowing some employees (particularly if they were identified as extremely clinically vulnerable) to continue to work from home.
What can an employer do if an employee still refuses to return to the office?
Employees have a right to refuse to attend work if they have a reasonable belief that attending work would put them in serious and imminent danger. Where employers take the steps above, it is unlikely an employee would be able to demonstrate that any fear of serious and imminent danger was reasonable.
Normally, where an employee fails to follow a reasonable instruction (i.e., to attend work) an employer may follow a disciplinary procedure to address such conduct. However, where employees are anxious (and particularly because of the uniqueness of the pandemic situation), we would always recommend talking to employees again and exhausting all other potential ways of resolving concerns before addressing the refusal to return to the office in a formal disciplinary procedure.
Additionally, a refusal to work or a grievance raised about the working environment could, subject to the specific facts, amount to a whistle-blowing concern and accordingly, it is crucial that employers take further expert advice due to the potential for a disciplinary sanction or dismissal to be viewed as being subjected to a detriment.
Julie Bann is a Partner and Victoria Smith is a Trainee Solicitor at Sharpe Pritchard LLP.
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