Most employees who have been infected with Covid will thankfully make a full recovery. However, an estimated 1.5 million people in the UK who develop long-term complications following an initial Covid infection – usually grouped under the term “long Covid” – could encounter a significant debilitating impact on their working life which creates HR law problems for employers.
What are the legal issues which arise from long Covid, and what should employers be doing to manage that risk?
What is long Covid?
Employees who are affected by long Covid may suffer constantly from symptoms, or these may recur periodically and in either case may be exacerbated by stress.
The symptoms can vary in both type and degree and their effects can vary from person to person. While there is no definitive list of symptoms, those which are commonly reported include:
shortness of breath
concentration and memory lapses (often referred to as “brain fog”)
anxiety and depression
changes in hearing, smell and taste
It is not difficult to understand why such symptoms can have a negative impact on working life.
While medical guidance exists, there is currently no legal definition of long Covid on which employers and employees can rely with certainty. For example, the World Health Organisation published a medical definition of long Covid last year, which clarifies that it usually occurs three months from the point of onset of Covid infection, with symptoms that last at least two months and cannot be explained by an alternative diagnosis.
The current legal position
Despite repeated calls from concerned parties such as the TUC, for long Covid to be formally recognised as a disability for the purposes of the Equality Act 2010, the Government has so far stopped short of amending the legislation.
The lack of legal clarity causes practical headaches for employers looking to support their employees. It also contrasts with other illnesses (such as cancer, for example), where an employee is likely to have received both a diagnosis and a treatment plan, and the disability protection offered by the Equality Act will clearly apply.
The Head of Employment Policy at the Equality and Human Rights Commission has recently stated that employers should presume that an employee’s long Covid symptoms meet the definition of a disability under the Equality Act 2010.
This cautious approach arguably does provide clarity, but it fails to recognise the variations related to the condition and it may not always be appropriate. For example, some employees may only experience long Covid symptoms for around two months, in which case informal support (such as a line manager suggesting a temporary period of working from home) may be more beneficial than a formal absence management process.
However, early flexibility and keeping an open mind to ways to mitigate an employee’s health difficulties will generally be the best approach. Should the condition subsequently become a disability, the employer will already have taken the first steps towards the legal obligation to make reasonable adjustments. In this way the risk of any successful disability discrimination claims can be minimised.
What are the key business issues and how can employers address these?
Intermittent absence: Long Covid symptoms may lead to continuous long-term absences for some employees but in our experience are just as likely to lead to intermittent absences of a shorter duration.
In this case, there is a danger that the initial empathy and support offered by employers can develop into frustration at the disruption that the employee’s absence causes within their team and the wider business.
It is important in these cases to maintain the level of support offered to employees in this situation and avoid treating them as if they are malingering. HR should be on the lookout for manager impatience, scepticism and resentment which may damage the employment relationship and increase the risk of subsequent employment law claims.
Impact on performance: Frequent absences from work, or symptoms while at work (such as long Covid “brain fog” or stress and anxiety), can have a detrimental impact on performance. Previously stellar performers may no longer be able to maintain the same level of results.
As a result, an employer may need to adjust its mindset to allow for the impact of long Covid and ensure that performance management processes are adapted accordingly. This is advisable even if it is unclear whether the employee’s condition amounts to a disability under the Equality Act.
Medical advice: As with any other employee illness, external medical support should be sought in relation to cases of long Covid. While a definitive diagnosis and advice may not always be possible because of fluctuating symptoms, occupational health (OH) providers will usually be better placed than the employer to establish the employee’s ability to return to work or to continue in their current role (perhaps with suggested adjustments).
Employers should think carefully about the questions they ask the OH specialist to answer, make sure the OH specialist understands the demands of the particular role, and give proper consideration to the OH report.
As mentioned above, employers may find themselves legally obliged to consider reasonable adjustments, and obtaining an objective medical opinion is an important step in satisfying that requirement.
It also provides an opportunity to ask specific practical questions, such as whether the individual is still able to cope with the inherent stress and demands of their role. The answers may inform future steps to be taken in any internal capability process that is underway.
Permanent health insurance (PHI): Many employers offer PHI cover to staff, which pays a proportion of an employee’s remuneration (such as half or two thirds of basic annual salary) for a specified period if they are absent from work with a qualifying illness.
There is also usually a deferment period, where the insurance benefit will not be payable until the employee has been unable to work for a specified period of perhaps 12 or 26 weeks. The recurring nature of long Covid symptoms may mean that an employee returns to active work in between recurrent short-term periods of absence. This contrasts with other long-term illnesses, where one continuous period of absence may be more common.
The desire to attend work is understandable, but it can negatively impact an employee’s eligibility for PHI benefits, effectively “resetting the clock” when it comes to the deferment period or meaning that they are no longer considered incapacitated under the policy terms.
Any adjustments that an employer has made to the employee’s working patterns to help them manage symptoms, such as reduced working days/hours, could also have a knock-on effect on the salary level that is used to calculate PHI benefits.
We recommend that employers familiarise themselves with the conditions of their PHI policy and take advice on how best to support employees with the specifics of the application process.
Develop a long Covid management strategy: The potential fall-out of long Covid is likely to affect employers for some time to come. Implementing a long Covid management strategy will help employers show their commitment to a supportive workplace culture. Factors to address might include:
how best to manage short-term absences
how and when to initiate conversations with employees
relevant medical evidence
sick pay entitlements
potential adjustments to be considered on a case-by-case basis
the impact of any PHI policy
Line managers could be trained and offered guidance on how to implement the strategy, ensuring that team members feel able to discuss their long Covid difficulties and stand the best chance of successfully returning to work.
Need more information about the above people and legal expertise? Talk to one of our lawyers: +44 (0)20 7628 2000
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