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Long Covid and absence management

Published 28 February 2022

The impact of the global pandemic will be felt for a long time and just one of the challenges employers will face is how they manage employees suffering from long Covid.

Many people, including workers, who tested positive for the virus have continued to struggle with the after effects for a considerable period of time afterwards.

An estimated 1.3 million people in the UK (two per cent of the population) were experiencing self-reported long COVID as of 6 December 2021 [1 cited 28.2.22]

Long Covid is used to describe signs and symptoms that last for a few weeks or months. The time it takes to fully recover can vary from person to person.

Common long Covid symptoms can include: extreme tiredness (fatigue), shortness of breath, chest pain or tightness,  problems with memory and concentration (‘brain fog’), difficulty sleeping (insomnia) and depression and anxiety [2 cited 28.2.22] The effects of long Covid can come and go

It is likely that there will be tens of thousands of employees whose health is being adversely affected by long Covid.

As more is discovered about the associated ongoing health problems, employers will need to be careful with how such cases are handled.

A Trades Union Congress (TUC) reports titled Workers’ experiences of long Covid found almost three in 10 respondents (29 per cent of the 3,500 people quizzed) had been experiencing long Covid symptoms for 12 months or more [3 cited 28.2.22]

This length of time is significant because in order to be protected under the disability provisions of the Equality Act 2010, a person has to have a condition that has a substantial and long-term impact on their ability to do normal day-to-day activities   [4 cited 28.2.22]

Long term is usually taken to mean 12 months or more. Disabled people are protected by the Equality Act from discrimination, harassment and victimisation.

Long Covid is still a new illness and it may take time to understand it fully.

The usual rules for sickness absence and sick pay should apply when someone is off work because of long Covid.

 

Typically when an absence is long-term an employee will be subjected to absence management or a formal capability procedure.

With long Covid each case should be considered on its specific facts to establish if the employee does in fact meet the definition for protection as a disability.

The best advice for employers is to treat such cases as if the employee is in fact covered by the Equality Act.

It can mean an employer avoids a potential claim for disability discrimination, which may happen if they treat long Covid employees less favourably because of their condition.

Disability discrimination occurs when someone is treated less well or put at a disadvantage for a reason that relates to their disability in one of the situations covered by the Equality Act.

The treatment could be a one-off action or the application of a rule or policy. It does not have to be intentional to be unlawful [5 cited 28.2.22]

Where an employee returns to work after recovering from long Covid, the situation still needs to be handled with great care.

The employer should consider making reasonable adjustments e.g. working from home, flexible working hours or a phased return.

Being out of the workplace for a lengthy period of time will mean that an employee will need support when they eventually return. What type of support is required should be discussed and agreed.

If the individual is then struggling to perform their duties or is continually taking time off sick, the employer should do all it can to help before initiating any formal procedures.

If an employee is dismissed and the employer does not conduct a full and fair disciplinary or capability procedure, they could make a claim of unfair dismissal to an employment tribunal.

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