Long Covid Could Prove a Challenging HR Issue

As Britain has learned more about Covid-19 and its treatment and consequences, so to it has discovered the presence of the condition now described as Long Covid, sufferers of which continue to suffer health impacts several months after initial ‘recovery’ from the virus.

This long-tail Covid is affecting young and old alike, creating issues such as fatigue, depression, stress, lasting fever, breathing difficulties, muscle weaknesses, chest pain, palpitations, skin rashes and cognitive issues.[1]

Many of the symptoms are very similar to those suffered by myalgic encephalomyelitis (ME) or chronic fatigue syndrome (CFS) patients[2] and, in just the same way, can come and go without any real pattern.  Such intermittent and reoccurring symptoms can prove very frustrating for sufferer and employer alike.
 
This is what makes Long Covid so difficult to tackle from an employment point of view, particularly as the Equality Act 2010 classes a disability, in legal terms, as a “physical or mental impairment” which “has a long-term adverse effect on the ability to carry out normal day-to-day activities.”[3]
Whether or not Long Covid is a condition that can be classified as a “disability” is something yet to be determined in law, but it is worth noting that conditions such as MS, HIV and cancer, which require long-term care, are classed as disabilities.  Typically, a sufferer must access the legal protection offered, at an employment level, by the Equality Act, by proving that their impairment is “substantial”.  Courts would typically look for long term impacts, defined often as lasting over 12 months or likely to last that length of time, or longer.

This legal framework around Long Covid matters, as an employer tempted to release an employee with a poor sickness record, which they attribute to Long Covid, could find that decision challenged in Court, at a disability discrimination hearing.

It is too soon to say how such things will pan out.  For now, employers should seek to manage employee absence as well as they can, understanding individuals’ situations and making adaptations and changes that could help them manage their health conditions.  To assist the handling of the issue, they can also educate line managers and ensure they manage those who report to them correctly, whilst also using occupational health specialists, to offer expert guidance on an individual’s state of health and needs.

Employers should already have sickness management strategies in place but may need to manage employees whose sickness exceeds such limits, with great care.

This is just one aspect of HR that has been complicated by Covid-19.  Managing what is still a relatively new disease is not easy, especially for an employer who wants to keep a business running and who cannot afford to have employees reticent to work or unable to do so because of sickness.  Slipping up, in an effort to keep work, sales and orders coming in, so as to keep others in employment, could be remarkably easy to do.

To manage Long Covid, employers should assess what guidance is available from the Government and from organisations such as the Advisory, Conciliation and Arbitration Service (ACAS). However, it may well pay to also have legal expenses protection in place, in case treatment of an employee is deemed unfair or in breach of disability law.  If you need help in putting such protection into place, we have experts who can assist you, so please contact us.

Sources:[1]https://www.nice.org.uk/guidance/ng188/chapter/common-symptoms-of-ongoing-symptomatic-covid-19-and-post-covid-19-syndrome[2] https://www.meaction.net/long-covid-me-understanding-the-connection/[3] https://www.legislation.gov.uk/ukpga/2010/15/section/6