Employers should treat all staff who have long Covid as if they have a disability, in the absence of clear legislative protections for people with lingering symptoms which can affect their performance at work.
The Equality and Human Rights Commission’s head of employment policy, Rebecca Thomas, said all organisations should presume that an individual’s long Covid symptoms meet the threshold required to be classified as a disability in order to avoid falling foul of equality law.
Although some campaign groups and bodies including the TUC are pressing the government to recognise long Covid as a disability worthy of protection under the Equality Act 2010, Thomas indicated that the condition has not been around for long enough to fully determine whether it can be classified as a long-term impairment.
For a condition to be recognised as a disability under the Equality Act, it must be considered “substantial” and “long term”, unless it is one of several “deemed” disabilities such as cancer or multiple scelerosis.
Some of the symptoms of long Covid, including cognitive difficulites and fatigue, can have a significant impact on work performance. Around one in 50 are thought to be affected by the condition, according to the Office for National Statistics.
“Because experiences [and] symptoms vary and fluctuate, and because it is still a relatively new condition, we can’t say definitively that all cases of long Covid meet the definition of disability under equality law,” Thomas said during a webinar organised by the Federation of Small Businesses (FSB) today.
“In the absence of clear legal protection, [alongside] evidence showing that a substantial number of people are still suffering after 12 months, we think the best approach is for an employer to assume that someone with long Covid has a disability.”
She added that there was a reluctance from government to specify long Covid as a disability because it is a “fluctuating” condition, where symptoms can come and go.
She said the EHRC is keen to see more case law in this area “but we recognise that can take a long time to come through, and that’s why we recommend that a good practice would be to support workers by making reasonable adjustments and offering greater flexibility”.
Mark Alaszewski, principal solicitor at the EHRC, said organisations should facilitate reasonable adjustments and ensure that an individual with long Covid is treated fairly to avoid the likelihood of claims for direct or indirect disability discrimination being taken to an employment tribunal.
He said reasonable adjustments for a person with long Covid are “likely to be an adaptation to a workplace practice, procedure, or potentially to an individual’s job role, such as changes to their hours or allowing them to work from home”.
“Reasonable adjustments can be time limited, and in terms of long Covid that is appropriate as it’s a condition that is temporary in nature,” said Alaszewski.
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Although some employees might believe that a fit note from the GP is enough to prove they have long Covid, Alaszewski recommended that organisations seek further advice from occupational health, or write to the employees’ GP to request further information about their condition.
Smaller organisations are often better placed to make reasonable adjustments than larger firms, suggested the FSB’s head of policy research Emelia Quist.
“Small businesses are relatively successful compared to the rest of the private sector in providing employment for people with disabilities and long-term health conditions, and this may be due to the fact that they’re more agile and flexible than a larger business,” she said. “It’s also because it’s easier for a smaller business to make changes to an employee’s job because, unlike in a larger business, they [may] not have to convince their line manager, the HR department and the board to make just a small change.
“The supportive culture found in many small firms may mean that employees feel confident to discuss their health concerns such, but some employees may be reluctant to discuss these issues.”
Jennifer Williams, a conciliator at Acas, said employers should be mindful that people with long Covid may develop mental health concerns, including depression and anxiety, as a consequence.
She said: “You should keep in contact with the individual and tell them when you are going to be contacting them. If someone is dealing with mental ill-health, arrange for them to call you at a given time so you don’t exacerbate those situations. Any back to work interview is a really beneficial thing to do. They should be done every time the individual is off, even if it is just for one day.”