Where an employee is returning to work after COVID – whether they have made a full recovery or are suffering with so-called long COVID – there will be a number of issues for the employer to consider.
Employers are under a duty of care to take reasonable steps to protect their workforce, customers and any visitors to their place of business from harm. The COVID pandemic has increased the scope of this general duty to include the health and safety aspects of reducing COVID infection and transmission rates, as well as supporting with the mental health issues that may arise among workers dealing with challenges presented by the pandemic.
To identify and help manage risk and protect people, the Health & Safety Executive advise employers to conduct COVID risk assessments.
It is also good practice for employers to remind workers to comply with the latest public health guidelines such as to:
- Maintain social distancing rules
- Wash their hands regularly
- Follow hygiene advice when coughing or sneezing
- Wear face masks (where applicable) except where the employee has a medical exemption
- Clean workspaces and commonly used surface areas regularly
Returning to work after a full recovery
Before an employee returns to work after suffering COVID, you should ask for confirmation from their GP that they are fit to return to work and can do so safely. Under the Government’s mandatory Return to Work Safety Protocol, you must also provide the employee with a pre-return-to-work form. This form should be given to the employee to complete at least three days before their proposed return to work.
As a minimum, the form should include the following questions:
- Do you have any symptoms of cough, high temperature, fever, runny nose, sore throat, breathlessness, or flu-like symptoms now or in the past 14 days?
- Have you been diagnosed with confirmed COVID-19 in the last 14 days?
- Are you a close contact of an individual who is a confirmed or suspected case of COVID-19 in the last 14 days (for example, less than two metres for over fifteen minutes cumulative over one day)?
- Have you been advised by a health professional or the tracing service/app to self-isolate?
If any of the above applies to the individual and they answer yes to any of the questions, they must remain at home.
As a reminder, an employee should not return to work if they:
- Are continuing to display coronavirus symptoms
- Are restricting their movements or self-isolating
- Have not spoken with you before returning to the workplace
Employers should also ensure their return to work procedure follows the latest government guidance, such as in relation to self-isolation and vulnerable workers who may need to work from home even after recovery.
Gaining a full understanding of your employee’s situation helps ensure you are meeting your legal duty to safeguard the wellbeing of your workforce, and keeps you abreast of those experiencing COVID-related issues that may affect their longer-term health and work attendance. This will help you to proactively manage any absences as and when they arise.
Long COVID & long-term sickness absence
A significant number of COVID patients are reporting continued and debilitating symptoms for weeks and months after the initial infection. Symptoms of long COVID can differ widely, from a persistent cough, fever, fatigue, shortness of breath, chest pain, headaches, neurocognitive difficulties, muscle pains and weakness, gastrointestinal upset, ongoing rashes and lesions, ‘Covid toe’, metabolic disruption (such as poor control of diabetes), thromboembolic conditions, depression and other mental health conditions.
There also appears to be a recover/relapse cycle over a long period of time which can cause individuals to be absent from work for weeks, or perhaps months, at a time.
There is, however, little in the way of research or information on long COVID and its effect on an individual’s ability to work.
Growing recognition that long COVID potentially poses a serious and lengthy health challenge came in October 2020, when Sir Simon Stevens, the NHS Chief Executive, guaranteed £10m to set up specialist clinics that will undertake cognitive, physical, and phycological assessments and treatment. Public Health England also published guidance, in September 2020, around the long-term health implications of COVID-19 which estimated that around 10% of those who suffered mild coronavirus and were not hospitalised reported symptoms lasting longer than four weeks. Hospitalised cases reported continuing symptoms for eight weeks or longer following discharge.
For employers, long COVID can raise many issues in relation to long-term sickness absence.
With general reductions in employment posts and growth in redundancies during the pandemic, many employers will find it a challenge to provide alternative duties or redeployment for affected staff.
Whereas in pre-pandemic times, employers would be able to make adjustments to enable an employee to remain in a role while their health situation improved, the businesses itself may not be in a position financially or operationally to provide the required level of support.
This could cause a rise in ill health severance agreements, early or phased retirement, and potentially for those with long-term incapacity, dismissal on grounds of capability.
Is long COVID a disability?
An area of law which is yet to be tested is whether long COVID meets the test of being a disability under the Equality Act 2010.
A person is considered to have a disability under the Equality Act if they have a “physical or mental impairment,” which “has a substantial and long-term adverse effect on their disability to carry out normal day-to-day activities.”
There are several conditions which are considered legally as disabilities. This means if the individual suffers from a specific condition, e.g., HIV infection, cancer, or multiple sclerosis, they automatically qualify for protection. In other cases, the individual must prove they satisfy the above definition in order to be protected from discrimination.
It may be that a long COVID sufferer will be able to show they have a physical impairment which adversely affects their ability to carry out day-to-day activities. However, it remains to be seen whether they could show the effect of their impairment is ‘substantial’, which is likely to pivot on the severity of their symptoms.
The last part of the test is whether the adverse effects are long term, which is defined in the legislation as:
- Having lasted at least 12 months
- Likely to last at least 12 months
- Likely to last for the rest of the life of the person affected
In the short term, this is a difficult question to answer given the length of time the virus has been in the UK. There is also limited medical data as to how long the effects of COVID-19 are likely to last, which will ultimately lead to legal determinations by an Employment Tribunal on the facts of the case rather than on a specific medical basis.
Should long COVID be found to qualify as a disability, treating a long COVID sufferer less favourably because of their illness and long-term sickness absence may amount to direct disability discrimination or discrimination deriving from a disability.
The Equality Act places an obligation on the employer to consider, what, if any, adjustments can reasonably be made to ease any disadvantage suffered in the workplace. For long COVID, potential adjustments might include: adjusting working hours, or allowing employees to continue working from home after lockdown ends.
As touched on above, issues are likely to arise in the context of absence management. By its very nature there is a recovery/relapse element to long-covid which may cause a continual pattern of lengthy and sporadic absence, which will need to be treated in exactly the same way as an employee on long-term sickness.
You should also consider whether the employee has any pre-existing conditions prior to contracting coronavirus (such as asthma or diabetes) which combined with their condition may result in overall long-term adverse effects that meet the Equality Act test for disability protections.
Supporting employees with long COVID
There are a variety of practical steps an employer can take to support employees who are suffering with long COVID such as:
- Engaging with employees who have reported suffering from long COVID and think about making any reasonable adjustments, if possible, to ease the problems they are having. This could include allowing phased returns (following periods of sickness absence), adjustments to working hours and type of work being done, allowing home working to continue, or providing access to occupational health and employee assistance programmes (if you have them available).
- Proactively managing staff absence by exploring the reasons for their absences and, if there is a pattern of intermittent illness which causes them to be off work, refer them to occupational health (if you can) which will help you form a better understanding of the prognosis. Always remember to keep a detailed record of any detrimental impact upon the business caused by staff absences.
- Educating line managers about the importance of acting in a non-discriminatory way when applying policies and procedures.
- Understanding any additional or specialist long COVID support being offered by your organisation’s occupational health provider (where available).
- Considering furloughing employees who are off sick. That said, care should be taken to manage this in accordance with furloughing guidelines. Government guidance states that the furlough scheme is not intended to be used for short-term sickness absence. Although, employers can furlough workers for business reasons when their employees are off sick should they wish to do so.
Need assistance?
DavidsonMorris’ employment lawyers and human resource specialists work with employers on all aspects of workforce management, including absence management and dealing with evolving issues relating to COVID sickness absence. We offer a holistic solution to support with legal risk management while protecting the best interests of the organisation. For advice on a specific issue, speak to our experts today.
Returning to work after COVID FAQs
What should I do if my staff or customer has tested positive for COVID-19?
If a member of staff, customer or visitor informs you they have tested positive for COVID-19, you should tell them to remain at home and self-isolate as soon as possible (together with the rest of their household) and encourage the individual to inform the NHS Test and Trace service of their recent contacts.
Do I need to inform my employer if I test positive for COVID-19?
Employees who test positive have a duty to notify their employer and must self-isolate. If an employee has been contacted by NHS Test and Trace, then they have a duty to notify their employer and take the necessary steps to self-isolate as instructed.
Will I be paid if I cannot work because of COVID-19?
You should check if you are eligible for sick pay form your employer, either contractual or statutory, and you may be eligible to claim a self-isolation payment from your local authority.
Last updated: 8 December 2020
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals