In part one of our agenda setting series, we looked at the current legal obligations under which employers are operating. In this second article, we look at some of the specific ill-health issues we expect employers to be dealing with over the next 12 months and what employers they can do to plan for and mitigate any potential disruption.

  1. Absence due to Covid-Pingdemic problems
  2. Long-Covid and the great unknown
  3. The state (of mind) of the nation
  4. T’is not the season to be jolly …..
  5. Diagnosis dilemma

  1. Absence due to Covid –Pingdemic problems

The most obvious ill-health issue for employers at present remains the impact of Covid-related absence on the workforce. While 81% of the adult population in the UK have received both doses of the vaccine, infection levels remain high and the severity of symptoms continues to vary across the population. From an employer’s perspective, there is no one size fits all when it comes to sickness absence: whereas one employee may soldier on at their home-based laptop with only a loss of smell and taste, another may be off work and confined to their bed for several weeks. 

The current position in relation to sickness absence and pay for employees who test positive for Covid-19 is relatively straightforward. The employee is entitled to statutory sick pay (SSP), currently £96.35 per week, during the 10-day self-isolation period, as well as the usual sick leave and any enhanced sick pay provided by their employer (which is normally inclusive of SSP). While the employee needs to have self-isolated for at least four days to be eligible for SSP, the SSP (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020 allow the employee to receive SSP in respect of the three-day waiting period, in contrast to the normal SSP regime.

However, there are many variations on the above scenario, such as employees who are self isolating:

  • because they are in a linked household with a Covid-positive person;
  • are undergoing a hospital procedure;
  • have been contacted by NHS Test & Trace as a close contact; and/or
  • have been “pinged” by the NHS Covid-19 app.

Whether the eligibility requirements for SSP and/or enhanced sick pay have been met has been the subject of much head scratching by HR teams this year. However, since August, fully vaccinated employees and those who are not able to get vaccinated for medical reasons, are no longer legally required to self-isolate when they have been in close contact with someone who has tested positive. Instead, they are advised to take a PCR test as soon as possible. This will have gone some way to relieving the burden of employee absence as a result of the “pingdemic”.  However, repeated alerts from the NHS Covid-19 App, and the waiting period prior to receiving the outcome of PCR results, mean that even the exempt employees may be absent for a period.  This may have a knock-on effect on the stability of the workplace and remains a top concern for most employers as we head into the autumn.

2. Long-Covid and the great unknown

With the Office for National Statistics estimating that more than 1 million people in the UK have suffered or are currently suffering from long-Covid, employers need to factor in long-Covid related absence as an important business risk for the coming year.

Despite calls from the TUC for long-Covid to be recognised as a disability, there have to date been no changes to the Equality Act 2010 to reflect this; nor is there a legal definition of long-Covid on which employers and employees can rely with any certainty. The National Institute for Health and Care Excellence (NICE) defines long-Covid as signs and symptoms that develop during or following an infection consistent with Covid-19, continue for more than 12 weeks and are not explained by an alternative diagnosis.

Significantly, there is no definitive list of symptoms although common symptoms are widely recognised as shortness of breath, fatigue, lack of concentration, anxiety and depression, and heart palpitations. Employees who are affected may suffer constantly, or have symptoms which recur periodically, and these may vary in both type and degree. Practically, this means that it could be difficult to obtain clear medical guidance from medical advisers.  HR teams may therefore have limited information on which to base important absence management decisions.

Are employees suffering from long-Covid legally protected?

A key question is the extent to which an employee’s symptoms could be considered “long-term” for the purposes of disability protection i.e. whether the condition has lasted, or is likely to last, for at least 12 months. 

ACAS has issued guidance on long-Covid, which stresses that employers should treat any such employee absence in the same way as other sickness absence and that support should be offered to assist with returning the employee to work. The cautious approach would certainly involve considering any reasonable adjustments for all affected employees and implementing these as appropriate (and regardless of whether the legal definition applies). ACAS suggests different working hours, or a phased return to work, which are both common practical measures that employers implement for long-term sick employees. 

However, open and empathetic communication with employees on an ongoing basis is likely to remain the most effective way to work out the necessary support to encourage a return to work, as well as the appropriate stage to begin any formal capability process. We consider the legal obligation to make reasonable adjustments in further detail in the section above.

Are there other risk factors with long-Covid?

Disability discrimination is not the only risk connected to long-Covid. Employers should keep in mind the importance of treating all employees who are absent with long-Covid both fairly and consistently, given reports that long-Covid is more likely to affect certain individuals, such as those who are pregnant, women and older people. The impact of the condition may also vary considerably between protected groups, such as ethnic minorities, who it is widely recognised have been more likely to experience severe outcomes from infection. 

There is therefore potential for claims under the Equality Act based on a range of protected characteristics and this places further emphasis on the need for employers to consider and implement reasonable adjustments in a consistent and supportive manner.  

Our view is that the potential management time involved, cost of absence associated with long-Covid (both financial and the employee relations impact), and employment claims risk, are all factors supporting the creation of a wider ill-health action plan.

3. The state (of mind) of the nation

It is no secret that the pandemic has had an exceptionally detrimental impact on the mental health of UK employees. Between social distancing, lockdowns, the loss of friends or family members, and extreme press reporting, the full extent of the long-term damage has yet to become apparent.

Reports from April 2021 show that the number of people contacting the NHS seeking help for mental health problems is now at a record high.  This coincides with lengthy care backlogs and waiting lists.

Employers may be experiencing the UK’s mental health fallout first-hand. On a day-to-day basis, changes in employee motivation and commitment, uncharacteristic behaviour or errors, and increased short-term sickness absence can all be indicators of a deeper mental health problem. While some behaviours may be difficult to spot where employees continue to work regularly from home, employers should ideally be alert to any out of the ordinary changes. Employee absence for this reason is also the most common cause of UK long-term sickness absence, and common conditions include depression, anxiety, and obsessive-compulsive disorders.

Workplace issues

Over the last 18 months, myriad work-related issues may have exacerbated existing conditions, or caused new mental health struggles for employees and some of these include:

  • feelings of isolation and loneliness from repeated lockdowns and persistent working from home;
  • unsuitable home-working environments, often with cramped conditions and/or the presence of flatmates/family members;
  • stress and anxiety caused by increased workloads, including as a result of colleague absence, and poor work/life balance;
  • concerns about health & safety, whether the return to the office will be Covid-secure, and the return of the commute on public transport;
  • fear of redundancy, career detriment, or reduction in pay and benefits where the employer is struggling financially; and
  • disconnect from the workplace and colleagues after prolonged periods on furlough.

Alongside work-related concerns, one glance at current news stories confirms that the UK public is set for a tough winter, with supply shortages across various industry sectors, rising costs, and an economic slowdown forecast.

The combination of all of these elements points towards a deepening mental health crisis. As such, we consider now is the time for employers to take positive, pro-active steps to bolster the mental health of their workforce.

What can we do?

Support can take a variety of forms and could include, for example: increased acknowledgement and understanding through policies, communication, and effective manager training; encouraging an open culture where employees can regularly discuss wellbeing concerns; partnerships with third parties such as counsellors and psychologists; and/or wider wellbeing activities (e.g. employee engagement activities and gym memberships).

Whatever the chosen approach, mental health management should be a significant element of future business planning, both to address the immediate difficulties that employees are likely to be facing, as well as to minimise the prospect of long-term absence in the months ahead. 

4. T’is not the season to be jolly…..

Among all the festive cheer that starts to circulate in December, there is also the prospect of winter viruses circulating, including seasonal flu and other respiratory conditions. It has been predicted that 2021 will be a particularly difficult flu season arising from reduced immunity levels last year following the UK’s repeated lockdowns. There is also uncertainty over the effectiveness of the flu vaccine.

While sporadic sickness absence is nothing new for employers, the cumulative effect alongside Covid-19 and increasing mental health problems means that employees may be more susceptible to poor health overall this coming winter. Increased absence results in increased sick pay cost to the business and an associated disruption in productivity.

Therefore, as a starting point, we recommend encouraging all employees to access the seasonal flu vaccination programme and consider offering private appointments or vouchers to those not eligible through the NHS.

In addition, employees over 50 will be able to access the Covid-19 booster vaccination programme and employers should remind and encourage employees to take this up. While a mandatory vaccination policy remains very difficult to justify outside of the health and social care sector, Public Health England has issued guidance to employers on how to support and encourage vaccination of the workforce, including an employer’s communication toolkit. 

5. Diagnosis dilemma

One of the unfortunate outcomes of the repeated UK lockdowns is a trend towards later diagnosis of chronic conditions such as cancer. Macmillan Cancer Support reported a 33% drop in stage one cancer diagnoses between March and June 2020, the consequences of which are an increased likelihood of more lengthy and complex treatment, at a time when access to medical care remains particularly difficult.

This healthcare crisis, coupled with increasing age diversity among the working population (as employees plan to retire later), means that employers may see increasing numbers of absent employees with long-term conditions. While this should be dealt with under normal capability and long-term sickness policies, delays in treatment can mean the general prognosis is less clear and the likelihood of a return to work is harder to pin down. Occupational health and specialist medical advisers will be best placed to advise from a medical perspective, but financially, employers should be prepared for the spiralling cost of sickness absence (e.g. company sick pay and higher PHI insurance premiums) and budget accordingly.

Contact us

If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak with your usual Fox Williams contact.

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