What is it?
With the continued rise in infection rates and the death toll having exceeded the 100,000 mark what is becoming more apparent is that although the majority of people who are infected are not hospitalised and get better, the symptoms and impact of Covid can often be more long term and go far beyond the current mandatory 10 day self-isolation period.
Many people report symptoms that have lasted weeks or months. Scientists have established that whilst many people feel better in a few days or weeks and the majority make a full recovery within an average of 12 weeks, some are not so lucky. In a further unexpected finding, it has also been suggested that the prospect of suffering from Long Covid is not linked in any way to how severe a person's symptoms were when they tested positive for the virus. People who reported mild symptoms are often the ones who then complain of long term problems, and are also usually younger and not those suffering from any underlying health conditions.
The most common (although not limited) symptoms of Long Covid are:
- Extreme tiredness (fatigue)
- Shortness of breath
- Chest pain or tightness in chest
- Problems with memory and concentration (“brain fog”)
- Difficulty Sleeping (insomnia)
- Heart Palpitations
- Pins and Needles
- Joint Pain
- Depression and Anxiety
- Diarrhoea, Feeling Sick, Stomach Aches, Loss of Appetite
- High Temperature, Cough, Headaches, Sore Throat. Changes to smell/taste
The fact that the above symptoms have the potential to last long term has given rise to the sensible question “Could Long Covid be a possible disability”.
The simple answer is YES! This may come as a surprise to but if we analyse the definition of disability within the Equality Act 2010, it is clear that under the three-part test a person has a disability if they have (i) “physical or mental impairment” which (ii) “has a substantial and (iii) long-term adverse effect on [their] ability to carry out normal day-to-day activities”.
People who suffer from Long Covid are likely to be able to show that they have a physical impairment which adversely impacts their ability to carry out normal day-to-day activities. This is not sufficient; they would then be required to establish that the effect of the physical impairment is “substantial”. Whether they are able to do this will depend on the severity of the symptoms. The final facet to the three-part test requires the adverse effect to be long term. Long term under the Equality Act 2010 is:
- having lasted at least 12 months;
- likely to last at least 12 months; or
- likely to last for the rest of the life of the person affected.
It is worth noting that the position is complicated by the fact that in the event that a claim is brought in the Employment Tribunal (“Tribunal”), makes a determination based on the likelihood of the condition lasting 12 months or longer as it was at the time of the alleged discrimination. It does not matter if in the end, it did not last 12 months or more.
Final hurdle problem
As the virus and the after effects, including Long Covid remain to an extent unknown in detail, how long the physical effects of Covid-19 are likely to last remains in question and dependant on the specific facts and the individual person, as well as knowledge and understanding of the impact of the virus itself by medical practitioners and scientists.
Discrimination Arising from Disability
A factor that is often overlooked is that a person suffering from symptoms post-Covid may well have a pre-existing condition that is considered a disability and therefore affords that person protection in law. Any discrimination that they suffer could be deemed as arising from their disability.
Challenges for Employers
Employers face challenges in managing the impact of Long Covid on employees, especially given the limited information available about the same at present. With the virus only having been around for just over a year, the real long terms effects are only now coming to light. A further factor which complicates matters for employers and their ability to manage Long Covid is that symptoms are said to come and go, with a person feeling fine one day, and then debilitated the next.
In a further twist there is also the consideration of whether someone who was asymptomatic could develop Long Covid Symptoms, or whether someone who did not test positive for Covid but may have had the virus subsequently starts to suffer from symptoms associated with Long Covid?
Less favourable Treatment
Employers should consider whether employees suffering from Long Covid may be considered disabled within the meaning of the Act, and subsequently be mindful of treating them less favourably as a result. Examples of less favourable treatment may be taking disciplinary action for sickness absences related to Long Term Covid, or performance managing someone due to underperformance related to Long Term Covid.
Employers are reminded of the duty to make reasonable adjustments to accommodate a disability. It is advisable to have a return to work interview after an employee has completed their self-isolation or any period of sickness absence relating to Covid and closely monitor the situation to be able to identify any needs an employee may have to support them in the workplace. Common reasonable adjustments may be:
- Phased return to work
- Flexible working
- Occupational Health Support
- Temporary reduction of working hours
- Flexible Furlough
- Working from home
- Reduction of workload
- Rest breaks
For further help, support and guidance please visit the NHS Covid Support web page.
For now, however the future remains unclear, as does the full possible impact on health long term as a result of having had Covid19. The worry remains that there will be an increase in ill health retirements for the severely affected. Those less severely affected but who cannot work in the same way that they used to, run the risk of being dismissed or their departure negotiated, leaving them in the midst of a global pandemic, not only suffering from Long Covid but also having to find employment that accommodates the condition long term.
This article is for information purposes only and is not to be taken as legal advice.