In response to the rise of “long COVID” cases in the UK, ACAS has recently published new guidance on long COVID for both employers and employees/workers to consider.
The guidance explores whether or not long COVID is considered a disability, what an employer should do if one of their workers contracts long COVID and explores instances where employees/workers are struggling to do their job.
Is long COVID a disability?
Disability is defined under the Equality Act 2010 as a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to do normal day-to-day activities.
“Long-term adverse effect” usually means that the impairment has lasted for at least 12 months or is likely to last for at least 12 months. As long COVID is a new disease, we are not yet at a point to know whether it will be considered a disability but, considering the range of potential symptoms, it is a strong possibility that it will amount to a disability in some cases. ACAS certainly appears to be trying to steer employers away from exploring technical arguments about how long Covid might not be a disability, encouraging them instead to just focus on making reasonable adjustments to accommodate the effects of long COVID.
Steps employers should take if an employee/worker contracts long COVID
The ACAS guidance states that employers should be aware that the effects of long COVID can “come and go”, with some people suffering from long COVID seeming well on some days but their symptoms could then worsen such that they require more time off.
Whilst this will make it practically more difficult for employers to manage long COVID in the workplace, employers will need to approach it in the same manner as other long term or intermittent health problems.
Employers should ensure that absences do not run on without any discussion with the individual; they should engage with them early on regarding their symptoms and hold return to work interviews. Occupational health can be a good tool to utilise in getting people back to work and understanding the adjustments that may be necessary to achieve that.
In circumstances where an employer believes that an employee is unable to do their work due to long COVID, ACAS is encouraging employers to see if there is anything further they can do to assist before considering formal action. This guidance reminds employers that any dismissal needs to follow a full and fair procedure, otherwise they could be at risk to a claim for unfair dismissal.
For more information on managing long COVID cases, please contact a member of the Employment Team.