Written by Nicola Gater | 21st September 2023
Three years on from the pandemic, some people are still suffering long-lasting effects of the virus, despite getting it weeks, months or even years ago.
Almost two million people were expected to be living with “long Covid” in the UK as of March 5 2023, according to Gov.uk. Long Covid is defined by NICE as signs or symptoms of Covid-19 which continue for more than 12 weeks, but symptoms can be more severe than those we usually associate with Covid and can impact someone’s ability to do their normal job.
Last year the condition was ruled as a disability at the first long Covid tribunal in Scotland, after a dismissed employee brought disability discrimination claims when his employment was terminated due to continued absence from work because of his symptoms.
Under the Equality Act, any physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities can be considered a disability.
This tribunal decision is significant, but English courts have yet to rule on the issue, and even in Scotland it does not mean that every person with long Covid will be classed as disabled. It will depend on the facts of each case. However, there is a clear risk that employers may be found guilty of conscious or unwitting discrimination against employees with long Covid if they don’t manage it appropriately. Here’s what you should be considering.
Follow latest guidance
ACAS has released new advice, as Covid-19 guidance for workplaces is replaced with public health advice.
Employers should now manage Covid infections and long Covid as they would other health conditions. Your normal company policies on sickness absence will apply, including usual rules for sick pay and absence management processes.
‘Self-isolating’ is no longer a legal requirement, but if your employee tests positive or has symptoms, they should follow public health advice and the sickness policy your organisation has in place.
It makes sense that someone with an infectious illness stays away from the workplace to avoid affecting your wider workforce. Decide on a sensible approach and communicate to your teams how long you expect someone to stay away, and whether they are allowed to return if they are testing positive but have no symptoms.
New ACAS guidance also includes getting the vaccine, workplace testing for Covid-19 and what to do if employees are concerned about going into the workplace.
Covid absences can also be included in triggers for stages of absence management processes. This is about supporting your employees to attend work more regularly, whatever their reason for absence. Triggers should not be used to automatically apply formal sanctions, but be a prompt for support, to explore what will help the employee attend work more regularly. When Long Covid is causing high levels of absence, you can still utilise your absence management process to meet and support the employee, but if it might be considered a disability, you may make reasonable adjustments by not imposing formal sanctions at the usual stages.
Training and understanding
Long Covid has a range of symptoms, and vary from person to person, so employers should be aware and understand the effects, including the fact that they can come and go. On some days an employee may seem well and able to work normally, but on other days the symptoms worsen and work is impossible.
Managers will need to consider the needs of the business whilst also being flexible and understanding to the employee. Ensure your managers are up to date on your current policies and approaches around sickness and absence, equal opportunities, and how to consider reasonable adjustments, so issues are managed in a fair and consistent way. Also train them in how to have conversations around health, and how to manage employees with long Covid.
The Equality Act protects employees from being treated less favourably than others because of a disability. Employers have a duty to make reasonable adjustments at work, to reduce the disadvantage created by someone’s disability. Failure to do so could result in a discrimination claim.
The employee doesn’t have to declare that they have a disability, if the employer can reasonably have been expected to know then the duties to avoid discrimination and make reasonable adjustments will still apply. And whether it is a legal duty of not, it is just good employment practice to discuss and agree any adjustments to anyone’s work in order to support them to do the best job they can.
So, what are reasonable adjustments? They are changes made to working conditions or practices, specific to an individual person, that can help them to do their job. Examples might include; if an employee suffers severe tiredness, you might provide more frequent breaks, with an appropriate rest area, or agree part-time hours for times of the day that they are not fatigued; an employer might adjust their absence management process, so that the disability is seen as a mitigating factor and delays formal sanctions for high levels of absence. Other adjustments could be adapting work tasks to make them less physically, mentally and cognitively demanding, temporarily or permanently.
What is ‘reasonable’ will depend on the situation – you should carefully consider if the adjustment is practical and will support the employee.
Once in place, maintain regular conversations to review the adjustments. As symptoms of long Covid can fluctuate over time, different working adjustments may be needed at different times.
Specialist support from occupational health or rehabilitation professionals can make a huge difference to employees in work, helping the employer to understand the difficulties and identify possible reasonable adjustments, and will be vital to providing medical expertise when planning a return to work or when making any difficult decisions about the employee’s capability for work.
Employees suffering from the physical symptoms of long Covid may also experience poor mental health, so they could benefit from support provided by mental health first-aiders or champions within the business.
Employee Assistance Programmes are low cost but valuable benefits which provide advice on a range of issues that arise when people are living with long term health issues, such as financial guidance, advice about work, and access to counselling and health advice.
Wellness action plans are also an empowering tool to look after wellbeing and can help managers understand how to best support the employee’s needs. The plan sets out how an individual feels when they are well, what they need to do to maintain their wellness, identifies any signs or triggers known to impact health, and the preferred response if these signs are noticed by others.
Long Covid is still a relatively new illness, and it will take time to fully understand. Rather than focusing on the illness itself, employers should focus on the impact it has on the employee’s day to day work activity, and how that can be mitigated. It’s important that managers have the training they need to support employees in the right way, so that they can continue working and adding value to your business wherever possible, but managing the situation fairly and legally if difficult decisions need to be made. If, after reasonable adjustments have been considered and implemented, the employee is still not able to attend work regularly, or perform to satisfactory levels, you can move into your formal capability process to consider their future at work. By considering, trialling and exhausting all alternative options and adjustments before making any final decisions, you can be sure you have acted fairly and reasonably as an employer.
If you have any questions or would like advice around how to manage employees with long Covid, please get in touch at [email protected].