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Long Covid – is it a disability?

17 March 2022

Under the Equality Act 2010, you are disabled if you have a physical or mental impairment that has a substantial and long-term adverse effect on your ability to do normal day to day activities.

  1. ‘Substantial’ is more than minor or trivial, e.g. it takes much longer than it usually would to complete a daily task like getting dressed or washed
  2. Long-term’ means it has lasted or is likely to last 12 months or more
  3. However, you automatically meet the disability definition under the Equality Act 2010 from the day you are diagnosed with HIV infection, cancer or multiple sclerosis.
  4. People with progressive conditions can be classed as disabled even before the effects become substantial
  5. There are also special rules about recurring and fluctuating conditions, so that it is deemed continuing if it is likely to recur

Symptoms of Long Covid
Fatigue, concentration, memory loss, taste and smell, anxiety and depression are all commonly reported symptoms of long COVID. All of these symptoms can have a substantial adverse affect on day to day activities. Of course some people recover quicker than others but some people have recurring and fluctuating symptoms where they seem to improve but then worsen, and some people get progressively worse over time. Remember, taste and smell may not affect your ability to do your job if you are a receptionist, but if you are a chef or work for the fire brigade that will not be the case. Every case is dependant on it’s own facts.

How do you know if an employee is disabled?
Any employee who has been diagnosed with long COVID or who is still suffering COVID like symptoms long after a positive covid test is not automatically considered disabled (although this may change when more is known about the condition). For now, they must meet the definition above. However, guessing whether the affects are likely to last more than 12 months can be tricky. It is always best to err on the side of caution and assume they will.

Remember that an employer must make reasonable adjustments when they know or ought to have known their employee is disabled. So, watch out for fit notes citing ‘long COVID’ or employees telling their supervisor about ‘long COVID like symptoms’ in an informal setting. Train your senior staff to be alive to this issue.

Any employer faced with the question of whether an employee with long covid symptoms is disabled under The Equality Act, would be wise to assume the employee is disabled and support them accordingly.

So, your employee is considered disabled – what now?

It might be best to have a policy whereby all staff who have had COVID, have welfare meetings about the impact of COVID on them and whether any support is needed. These meetings should take place periodically until symptoms have dissipated entirely, bearing in mind, symptoms could return.

Welfare meetings are also important when dealing with an employee who is now also facing capability or performance proceedings. Obtain an occupational health report. If an employer has not tried to support a disabled employee who is facing capability or performance action, there is a massive risk of tribunal litigation.

Discrimination
You must not discriminate against someone with a disability. Discrimination is when someone is treated unfairly (less favourably) due to a protected characteristic. Disability is a protected characteristic. Some examples of discrimination are as follows:

  1. Not giving an employee a promotion because they are disabled (direct discrimination)
  2. Applying a policy to all staff to work in the office, which has the consequence of putting a disabled employee at a disadvantage compared to an employee without the same characteristic (PCP/indirect discrimination)
  3. Failing to make reasonable adjustments (like installing a ramp and allowing for a later start time to the working day) for a disabled employee who cannot climb the stairs and has difficulty dressing in the morning.

Examples of ways you can support a disabled person

  1. Paid time off for medical appointments or other procedural adjustments)
  2. Installing a ramp (or other physical adjustment)
  3. Have regular 121s and obtain an occupational health report
  4. Consider health and safety assessments to assess the risks to the employee in performing their role and make necessary adjustments

If you need help navigating this legal minefield, please contact Julie Atkinson-McGregor on 0191 205 8020.

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