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Long Covid – should employers treat it as a disability?

Figures published by the Office for National Statistics shows nearly 14.2 million people in the UK aged 16-64 said they had a health condition lasting for at least 12 months in 2021, a rise of 1.2 million people during the two years of the Covid pandemic.

Many of these new cases will be people suffering from long Covid.  People affected by long Covid are reporting a range of issues from extreme tiredness and fatigue, brain fog to breathlessness and depression.  Two years on since the start of the pandemic and with no clear guidance, what should employers do and are they at risk of falling foul of equality law now or in the future?

The Equality and Human Rights Commission has recently said that businesses should presume an individual’s long Covid symptoms meet the threshold to be classed as a disability.

One of the issues employers face is that individuals’ symptoms and their severity are very different, so all cases might not meet the definition of disability under equality law if challenged, but they have no way of knowing that.  There is also a lack of case law to fall back on in relation to long Covid.

If employers therefore assume that if someone has long Covid they have a disability,  then they can make sure they are treated fairly and in accordance with the Act to avoid the chance of claims for direct or indirect disability discrimination at an Employment Tribunal.

Employees should be encouraged to provide a fit note from their GP and organisations should seek further advice on specific occupational health needs.  Providing a supportive culture will also allow employees to feel confident about discussing any ongoing concerns.

Businesses should make reasonable adjustments such as adaptations to the workplace, practices, procedures or potentially to a person’s specific job role, working hours or working from home arrangements. Given that long Covid is considered to be temporary, it would be fair for these reasonable adjustments to be time limited and reviewed based on the assumption the individual will make a full recovery.

Managing those employees with mental health concerns as a result of their long Covid will need to be done with sensitivity.  Training and additional support might be needed for managers on dealing with these issues so there is consistency across the business.

Long Covid might affect many individuals for years to come, so businesses need to think now about how they will help their employees to continue to work effectively despite it.