The Office for National Statistics (ONS) has reported that 1.8 million people in the UK are suffering the effects of long COVID. Last year, we published an article following ACAS guidance on long COVID and the Equality and Human Rights Commission (EHRC) has recently released a statement suggesting that long COVID may amount to a disability.
An individual suffers from long COVID where they experience COVID symptoms for more than 4 weeks. As per the ONS published information, 67% of those who self-reported that they had been suffering from long COVID stated that their day-to-day activities are adversely affected by their symptoms.
Disability is a protected characteristic under the Equality Act 2010 (EqA) and is defined 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. In an employment context, where an employee suffers from a disability an employer has a duty to make reasonable adjustments to avoid any substantial disadvantage arising from a provision, criterion or practice, a physical feature of an employer’s premises or the absence of an auxiliary aid.
Is long COVID a disability?
“Long-term adverse effect” means that the impairment has lasted or is likely to last for at least 12 months. The ONS report that of the 1.8 million people who self-reported that they were suffering from long COVID, 44% had been affected for at least a year and 13% for at least two years. This creates a large pool of individuals who could potentially fall within the definition of disabled under the EqA provided they meet the other requirements of the definition.
On 9 May 2022, the EHRC released a statement providing guidance on whether long COVID amounts to a disability. The guidance states that whilst cases of long COVID will not automatically fall within the definition of disability, each case will depend upon the specific circumstances of the individual. Given the absence of a universal approach to long COVID, the EHRC encourages employers to follow existing guidance on reasonable adjustments based on an individual’s specific needs.
Guidance for Employers
Whether or not an employee suffering from long COVID falls within the definition of disabled under the EqA depends upon the specific circumstances and each case will turn on its own facts.
The recommendations set out in our May 2021 blog remain relevant. Employers should engage in open conversations with employees suffering from long COVID, including making referrals to occupational health to understand how the employee’s condition affects their ability to undertake day-to-day activities. Once an employer has consulted and gained an understanding of an employee’s particular circumstances and medical condition, reasonable adjustments should be implemented where required.
For more information, please contact the Employment Team.