This time last year, just as we were coming to terms with our ‘new normal’ life in a pandemic, another concerning illness was beginning to rear its head: Long COVID.
Long COVID is the name which has now been given to describe the long-term post-viral symptoms of Covid-19. Much like COVID-19 itself, Long COVID does not discriminate in terms of who it affects, and many previously active or healthy people have been left suffering with long term symptoms, which can include shortness of breath, chest pain, palpitations, problems with memory and concentration, and depression.
As more cases were recognised, and as time has gone on, this unpredictable condition has presented a challenging landscape for employers to navigate as they try to understand how it may impact their staff and their workplace.
So how should local government employers respond if one of their employees falls ill with Long COVID?
Long COVID presents numerous implications for employers. How do they deal with sickness absence? What longer term adjustments are needed in the workplace? How might this affect their employee’s role or their work environment?
It is essential, firstly, for organisations to take stock of the situation, and to fully understand their employee’s state of health. In particular, employers need to be mindful of the potential for Long COVID to be classified as a disability under the Equality Act 2010.
This act protects certain characteristics from discrimination, and so treating a worker less favourably because they have Long COVID, or because they are off work more often due to their condition, could be deemed as disability discrimination. If Long COVID amounts to a disability, there is also a positive duty on the employer to make reasonable adjustments to address any disadvantages the employee may be suffering due to their condition.
Under the Equality Act 2010 a person is classed as disabled if they have a ‘physical or mental impairment’ which ‘has a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities’. ‘Substantial’ is defined as having only a 'more than minor or trivial' adverse effect on activities, and since Long COVID affects sufferers in myriad ways - with symptoms ranging from heart problems to impaired mobility - it is likely that many suffering from Long COVIDd will meet this criteria. ‘Long term’ is defined as having lasted, or being likely to last, 12 months.
Those employees who caught COVID in the first wave may well have had at least 12 months of symptoms already. But for those who are not yet at that threshold it will be important for employers to get medical advice about the likelihood of the condition becoming long term. In our experience, an Employment Tribunal will expect local government employers, with access to occupational health advice, to obtain medical advice at an early stage and to act in accordance with its recommendations.
The Advisory, Conciliation and Arbitration Service (ACAS) has provided advice and practical tips for employers to help them manage these situations.
First and foremost, engaging with the employee in question, to learn about their condition and how it might be affecting their ability to do their job, is of paramount importance. In almost all cases we would recommend that employers seek occupational health advice about the employee's condition and about any adjustments that might be necessary to help them sustain their employment. If it is likely that the employee is going to be covered by the Equality Act, reasonable adjustments should be considered proactively. These could include allowing continued home working, changing working hours or adapting their role and looking at whether any physical adaptations or equipment might assist.
Line managers should be informed about the importance of applying reasonable adjustments to policies and procedures to ensure that employees with Long COVID feel supported and are not discriminated against. This may involve adjusting trigger points in absence management procedures to ensure that employees are not unfairly disciplined in relation to disability-related absence, or adjusting their approach to performance management to take the employee's condition into account.
There will undoubtedly be challenges ahead as employers learn how Long COVID will impact their workforce. The Trades Union Congress has recently called for Long COVID to be automatically recognised as a disability, and many local government employers will be faced with employees and their representatives who will expect them to act accordingly.
Whilst it is unlikely the Long COVID will be added to the list of 'deemed disabilities' under the Equality Act, there is a strong likelihood that the mental and physical symptoms that arise will be protected as disabilities under the Act. All employers must, therefore, be mindful of their responsibilities in this regard - and none more so than local government employers, who employ many key workers who have been directly impacted by the pandemic. The picture is far from clear, however. We are learning about the virus and its longer term impacts every day. But there is one thing that there should be no confusion about: each individual case should be looked at on its own merit and employers should seek legal advice when dealing with employees with Long COVID and before taking any action.
Sarah Gilzean is an accredited specialist in employment law and discrimination law on the public sector team at Morton Fraser.