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The Equality and Human Rights Commission’s Head of Employment Policy has suggested that, to avoid organisations inadvertently breaching equality law, they should treat their employees who have long COVID-19 symptoms as if they have a disability for the purposes of the Equality Act 2010.
A disability is defined under section 6 of the Equality Act 2010 as a physical or mental impairment that has a substantial (more than minor or trivial) and long-term (has lasted or is likely to last at least 12 months, or is likely to last the rest of their life) adverse effect on the ability to carry out normal day-to-day activities.
The problem that employers have had is that the symptoms and duration of long COVID vary wildly and fluctuate. However, there are some lingering symptoms, including fatigue, breathlessness and cognitive impairment which could certainly affect an employee’s day-to day performance in their workplace, and in many cases could be significant.
As we pass two years since the start of the first lockdown, sufficient time has elapsed for us to acknowledge that long COVID symptoms are affecting a substantial number of people for lengthy periods, often surpassing the 12-month mark.
As such, it certainly appears to be the case that some sufferers of long COVID would fall within the section 6 definition, but why then is the EHRC suggesting that employers should treat all long COVID sufferers in that way?
Over the past year, the Trade Union Congress (TUC) and other bodies have called for long COVID to be recognised through legislation as a disability and as an occupational disease. However it appears that the government are, so far, reluctant to take this step, largely due to its nature as a fluctuating condition and the still relative newness of the illness.
Whilst this lack of certainty over the condition has prevented legislative action from being taken, there is enough evidence to highlight a clear risk that it will, in many cases, amount to a disability. It is for this reason that the Head of Employment Policy at EHRC has indicated that the best approach is for an employer to assume that someone with long COVID has a disability, with good practice being to support workers by making reasonable adjustments and supporting greater flexibility.
Long COVID is still a new condition and we are still learning about it every day. We consider that employers’ time and efforts may be better spent considering what reasonable adjustments they can make and support they can give to suffering employees, rather than trying to assess whether it amounts to a disability in law.
There has been a lot of advice out there telling employers to treat long COVID just as it would any other illness, and whilst this is theoretically correct, the reality is that long COVID is different! The symptoms may come and go for several months, vary wildly between individuals and we are still learning about long term implications. Employers will need to open lines of communication, taking the time to sit and listen to their employees to understand how long COVID is affecting them, and where appropriate seek medical advice from an Occupational Health practitioner.
A prudent employer, heeding the advice of EHRC will consider what adjustments can be made, such as changes to hours and duties and be flexible and innovative in what can be achieved. In doing this, be alive and sensitive to the fact that this may well be a chronic condition which will require long term or even indefinite solutions put in place. In a time when the recruiting market is fraught with difficulties, retaining key talent is essential.
As with everything in life, knowledge is power, and building understanding within your HR and management team will be crucial to ensuring sensitive support to those suffering.
For further information on this article, or help with managing and supporting an employee with long COVID, please contact our Employment team.