Long COVID is a shorthand term for the long-term adverse effects of coronavirus. Many employees will feel better in a few days or weeks after coronavirus and the majority should make a full recovery within twelve weeks. However, for a significant minority of people, long-term symptoms of coronavirus can last for a significant period after an initial COVID-19 infection. Symptoms are extensive, ranging from exhaustion, breathing difficulties and breathlessness, continued fever, anxiety and stress, to muscle weakness, and the inability to walk. Others have heart or neurological problems. Lung abnormalities seem to last many months after infection and there seem to be post-viral fatigue symptoms similar to ME or chronic fatigue syndrome. There is increasing medical evidence that a small but significant minority of people who contract COVID-19 can still be seriously affected months after initially falling ill. As the virus is so new, medical knowledge about the effects of long COVID are still the subject of extensive research.

Long COVID symptoms can happen to people of all ages regardless of underlying health conditions and there will be some employees who are unable to return to full-time work for long periods.

Long COVID can affect anyone of any age, although women under 50 are 50% more likely to suffer from long COVID than men in the same age group. Risk factors linked to long COVID include age, weight, asthma and ethnicity. So, employers must handle long COVID in an even-handed manner to avoid allegations of indirect race, sex or age discrimination.

In summary, sufferers of long COVID may have a disability although this is untested in the courts. Long COVID is likely to exacerbate a pre-existing condition (for example asthma) so some sufferers are likely to meet the definition of disability.

Is an employee with long COVID suffering from a disability?

To be protected from disability discrimination a person must have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

An employee with long COVID who has breathing difficulties and muscle weakness will have a physical impairment which adversely impacts their ability to carry out normal day-to-day activities. That effect will be substantial in some employees and not in others, depending on the severity of their symptoms.

The adverse effect of the impairment must be long-term which means:

  • it has lasted at least 12 months;
  • it is likely to last at least 12 months; or
  • it is likely to last for the rest of the life of the person affected.

The long-term physical effects of COVID-19 are now starting to be observed over a long enough period  and it is clear that symptoms of Long COVID that have a significant impact on daily life clearly have the potential to  be viewed as a disability.

Employers must look at the specific facts of each case but it is starting to look as if there will be long COVID cases that meet the definition for protection as a disability. Employers can potentially face direct disability discrimination or discrimination arising from a disability claims if they treat employees with long COVID less favourably because of their condition and should consider making reasonable adjustments, for example home working, adjusting working hours or a phased return. Employers should assume that employees may be protected by the disability definition. Even if long COVID is not proven to be sufficiently long term, at least some employees with it are likely to have conditions which are increased by or triggered by the virus.

Managing employees suffering from the effects of long COVID

Employers can manage employees suffering from the effects of long COVID in a similar way to employees with other long-term conditions, although some extra considerations may be appropriate. There appear some similarities between Long COVID and ME, and an employee may be more able to work on some days than others.

The usual advice for long term absences entails proactively managing absence and keeping an appropriate level of contact with the absent employee. Managers should follow any long term absence procedures and understand the symptoms and reasons for any absences with the support of any occupational health advisers where appropriate. Employees with long COVID should be entitled to any company or statutory sick pay, in a similar manner to any other employees on long-term sickness absence. However, long COVID symptoms vary so discussions with each employee will be critical to identify how it affects them, to assess the support needed by and tailored to each individual employee. In addition:

  • After normal sick leave provisions employers can consider allowing a phased return to work.

  • Other ways to manage employee’s return include temporary or permanent adjustments to working hours and continued homeworking.

  • Consider other reasonable adjustments to alleviate the employee’s problems and providing access to occupational health and employee assistance programmes.

  • There may be health insurance provision and employers will need to check if employees with long COVID are covered (see below). Some insurers already offer long COVID packages of rehabilitation time and therapy where staff can be referred by employers after an absence of four to six weeks.

Health insurance

Some employers have permanent health insurance (PHI), employer's liability or income protection insurance covering staff on long term sick leave. Normally employees must meet eligibility criteria which can link to being disabled. Insurance policies may pay out  and give full or partial salary when sick pay ends. As long COVID is new there is no case law guidance confirming it meets the disability definition. However, it is thought that at least some long COVID sufferers will suffer from a disability and be entitled under policies. Long COVID may exhibit related conditions like post-viral fatigue which are disabilities anyway.

Disability

Employees with long COVID may have a disability, so employers should consider what adjustments to duties, working from home or working hours could help them return to working or the workplace (once lockdown restrictions end). Flexible working may be needed as people may be able to work on some days better than others, as with those diagnosed with ME. Employers should avoid treating employees less favourably because of their high levels of sickness absence as this could be direct disability discrimination or discrimination arising from a disability. Line managers should be educated about how to use sickness absence policies and procedures in a non-discriminatory way. If managers are unsupportive or disengaged regarding any matters resulting from the pandemic then wider workforce relations can be damaged.

The CIPD has contributed to a COVID-19 return to work guide by SOM which offers guidance from occupational health professionals on how workers can manage getting back to work after COVID-19 infection and long COVID.

DISCLAIMER: The materials provided here are for general information purposes and do not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. The CIPD is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance. You should consult the government website for the very latest information or contact a professional adviser for legal or other advice where appropriate.

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