For a growing number of people, coronavirus continues to cause a range of symptoms that last for several weeks or even months post-infection, leading to a diagnosis of long COVID. The symptoms can be so debilitating that it impacts their ability to work, resulting in long term sickness absence.
The following guide for employers provides some insight into the nature and impact of the long-term effects of Covid-19, with best practice steps on how to manage long COVID sickness absence. We also look at whether, as a matter of law, long COVID constitutes a disability under the Equality Act, and the employment rights of those who have been diagnosed with this condition.
What is long COVID?
For individuals who have contracted coronavirus, even where their symptoms were initially mild or did not require hospitalisation, this can continue to impact both their physical and mental health. This is called ‘Post-Covid Syndrome’, ‘Long-Tail Covid’ or simply ‘long COVID’.
The length of time to recover from coronavirus has proven to be different for different people. Many people will feel better within a few days or weeks, and most will fully recover within a period of 12 weeks. However, for others, symptoms can last much longer. In cases where these symptoms persist for more than 4 weeks, this is referred to as ‘Ongoing Symptomatic Covid’.
The term ‘long COVID’ usually refers to where ongoing symptoms, that cannot be explained by any other condition, continue for more than 12 weeks.
There is a wide range of symptoms that someone can get following a Covid-19 infection, some physical and some psychological. The most commonly reported symptoms include:
- Respiratory and cardiovascular symptoms: such as shortness of breath, a continuous cough, chest tightness, chest pain and heart palpitations
- Neurological symptoms: such as loss of concentration or memory issues, severe headaches, difficulty sleeping, pins and needles, numbness, dizziness and even delirium
- Gastrointestinal symptoms: such as nausea, diarrhoea, abdominal pain and reduced appetite
- Musculoskeletal symptoms: such as joint pain and muscle pain
- Psychological symptoms: such as depression and anxiety
- Ear, nose and throat symptoms: such as earaches, tinnitus, a sore throat and a loss of taste and/or a loss of smell
- Dermatological symptoms: such as a skin rash
- Generalised symptoms: such as fatigue, fever and pain.
The course of a person’s recovery from coronavirus is not necessarily related to the severity of their initial infection, where some people with few symptoms can still experience long-term problems. For some, this can be debilitating, whilst for others the effects are variable. The symptoms of long COVID can also change, where new symptoms may develop over time.
Is long COVID a disability?
The Equality Act 2010 prohibits discrimination against disabled people, including in the workplace. However, to be afforded protection under the Act, an employee must have an impairment that meets the statutory definition of disability. An employee will be classed as having a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Burke v Turning Point Scotland (June 2022) is expected to be the first of many tribunal rulings on the issue of discrimination and long COVID. In this case, the Employment Tribunal ruled in a preliminary hearing that the claimant’s long COVID did, in this instance, amount to a disability under the Equality Act. While the tribunal’s ruling in Burke turned specifically on the facts of the case and will not be binding on other courts, it is possible that higher courts could reach a different conclusion on different facts, meaning not all cases of long Covid could amount to a disability. However, it is likely that those with long-COVID may well satisfy the definition of disability.
The Equality Act requirement for disability has various different elements. In the context of long COVID, as symptoms can be many and varied, there will usually be a number of aspects to an employee’s impairment. It is not necessary to categorise their condition as either a physical or mental impairment. Instead, the employer must consider the cumulative effect of the range of symptoms, and whether these give rise to substantial limitations.
The employer must then consider if the effect of the employee’s impairment is long-term. A long-term effect is one that has lasted or is likely to last at least 12 months. It can also include fluctuating or recurring effects, even where there are periods of remission.
Whether an employee satisfies the definition of disability for the purposes of the 2010 Act will therefore depend upon the nature and extent of their symptoms. Long COVID is still a new type of illness and it may take some time to fully understand it. However, it can certainly affect a person’s day-to-day activities and their ability to function normally, and it can last or come and go for several months. The effects of long COVID could also cause other impairments.
What are the employees’ rights if diagnosed with long COVID?
In cases where the employee is classed as having a disability, they have the right not to be discriminated against because of this. This will potentially afford an employee diagnosed with long COVID protection against being treated unfavourably at work in relation to a number of different aspects, including opportunities for promotion, transfer and training. The disabled employee will also be afforded certain protections against being disciplined or dismissed.
In theory, the employer is legally entitled to dismiss a disabled employee due to ill health, where capability constitutes a potentially fair reason for dismissal. This could be, for example, where the employee has been on long-term sick leave with no reasonable prospect of resuming their job role any time soon. However, any decision to dismiss must only be reached as a last resort, where the employer must be able to objectively justify any dismissal, including why any reasonable adjustments could not be made to support the employee’s return to work.
If the employer knows or could reasonably have been expected to know an employee has a disability following a long COVID diagnosis, any reasonable adjustments must first be made before dismissing that individual. This is to remove any disadvantage suffered by the disabled employee in doing their job when compared to non-disabled people including, for example, different working arrangements or workplace adaptations.
In any event, the long COVID sufferer will be entitled to take sick leave, regardless of whether their symptoms should be treated as a disability, in the same way as they would in relation to any other condition that affects their ability to work. This includes the right to either statutory sick pay or, where applicable, enhanced contractual sick pay, provided the employee satisfies the eligibility criteria for paid leave. The usual rules around sickness absence and sick pay apply when someone is off work because of long COVID.
Managing long COVID sickness absence
Below we set out some best practice steps for employers to follow when managing long COVID sickness absence at work.
Consider long COVID as a disability
Until case law in this area is more established, employers are advised to air on the side of caution and to consider long COVID as a qualifying disability under the Act, and to meet the necessary legal obligations relating to employees with disabilities.
Update your sickness absence policy
An individual who is off work due to long COVID should be subject to standard rules for sickness absence and will be entitled in the usual way to sickness pay. Ensure your sickness absence policy is up to date in respect of entitlements, that managers are trained on all aspects and procedures of the policy, and that employees are aware of the policy and their rights and obligations under it.
Given the current lack of clinical knowledge around the lasting effects of long COVID, any sickness and absence potentially linked to this condition must be handled sensitively. This is likely to be an extremely worrying time for the employee, who may have very real concerns about their long-term health, their ability to return to work and their job security.
Being met with a lack of understanding or empathy from their employer may exacerbate certain aspects of the employee’s illness, especially when it comes to their mental wellbeing. The employee may also take the view that they’re being treated unfairly because of their condition, laying the foundations for a potential unlawful disability discrimination claim.
Equally, employers must be careful to avoid other types of discrimination when managing long COVID sickness absence, as this condition has been found to most severely affect older people, ethnic minorities and women. Employers must therefore avoid unlawfully discriminating against an employee diagnosed with long COVID by reason of age, race or sex.
If an employee is off sick with symptoms of long COVID, especially for prolonged periods of time, they may be feeling isolated. Employers should discuss how and when to make contact during any long COVID sickness absence, keeping the employee in the loop about what’s happening at work and talking about ways to support them during their absence.
Once someone has been diagnosed as suffering from long COVID, employers and employees should discuss the potential impact of this as early as possible, working together to find ways to minimise any adverse effects on work. When the employee is fit to return to work, the employer must also consider what steps can be taken to support their return.
The employee’s GP or other medical professional may have made certain recommendations. These will usually be set out in the employee’s fit note. In some cases, an occupational health assessment may be needed to assess the employee in the context of their job role and to consider what additional steps can be taken to facilitate them moving forward.
Consider making reasonable adjustments
Employers are advised to air on the side of caution and to consider long COVID as a qualifying disability under the Act. Even where an employee is assessed as potentially fit for work, there’s every likelihood that their symptoms may recur. Employers should therefore focus on what reasonable adjustments can be made to support the employee’s return, and prevent a risk of relapse, rather than trying to establish if an employee’s condition amounts to a disability.
The provision of reasonable adjustments is also likely to translate to significant financial savings for the employer associated with sick pay and temporary cover, provided these adjustments are effective in minimising the impact of the symptoms of long COVID and supporting the employee in their job role. It’s therefore important that any adjustments made are specifically tailored to the specific range of symptoms suffered by the employee.
There are a whole range of reasonable adjustments that can be made to support an employee following long COVID sickness absence. These include changes to the workplace, the provision of specialised equipment or changes to how the employee works, such as amended duties or altered hours. In many cases, some form of flexible working arrangement will significantly assist an employee, especially those with fluctuating or sporadic symptoms, such as the ability to start and finish at different times, or being able to work partly or fully from home.
A phased return to work can be especially helpful following long COVID sickness absence, as this will ease the employee back into their responsibilities without exacerbating symptoms such as fatigue and anxiety. For example, where an employee has been suffering from severe tiredness since having Covid-19, by allotting some of their work to other team members, the employer can offer part-time hours to gently re-introduce the employee back into their role.
The back-to-work arrangement can then be reviewed after an agreed timeframe, with regular wellbeing discussions in-between, although employers should be aware that the effects of long COVID can frequently come and go. On some days the employee might seem well, but on others, their symptoms can worsen and they might need to take time off work again.
The employer should therefore continue to regularly review the employee’s health and wellbeing in the workplace, and make new adjustments if necessary. In severe cases, the employee may need to be re-assessed by occupational health. They may also need to be referred via their GP to a multidisciplinary post-Covid rehabilitation clinic.
DavidsonMorris’ employment lawyers provide specialist guidance to employers on all aspects of workforce management, including managing sickness absence in relation to long COVID and other long term conditions and disabilities. Through our fixed-fee employment service, Triple A, your organisation can gain access to unlimited employment law advice from a dedicated lawyer to support compliant handling of workplace issues that reduce legal risk and support positive workplace relations. For specialist advice, contact us.
Long COVID Sickness Absence FAQs
What are the symptoms of long COVID?
Symptoms of long COVID can vary from person to person, but can include respiratory, cardiovascular, neurological, gastrointestinal, musculoskeletal, psychological, dermatological, as well as ear, nose and throat symptoms. These can also change over time.
Last updated: 23 June 2022