ACAS publishes new guidance on dealing with "long COVID"
For some time now, the NHS have recognised that contracting coronavirus (“COVID-19”) can not only have an immediate impact on an individual’s life and general well-being, but that the infection can also have long-term effects for some (commonly referred to as “long COVID“, “post-COVID-19 syndrome”, or “long-tail COVID”). In light of this, on 30 April 2021, the Advisory, Conciliation and Arbitration Service (“ACAS”), published new guidance for employers and workers suffering the effects of long COVID. In the guidance, ACAS provide commentary on the common symptoms of long COVID as recognised by the NHS, how employers should manage sickness and absence in relation to long COVID, and also the issue of whether long COVID is likely to be considered a disability under UK employment law.
Common symptoms of long COVID
As is directly quoted in the ACAS guidance, the NHS has compiled a list of the most common long COVID symptoms. These symptoms include, among other things, shortness of breath, extreme tiredness (fatigue), joint pain, and problems with memory and concentration (often referred to as “brain fog”). As a result of the wide ranging symptoms, and the fact that our understanding of the virus itself is far from complete, there appears to be no “one size fits all” approach in relation to the recovery time of individuals who have been infected with COVID-19, and in relation to the continuation of the often debilitating symptoms associated with infection.
Accordingly, the ACAS guidance provides that where an individual is diagnosed with long COVID, it is recommended that the employer and worker engage in discussions on the potential impacts on the day-to-day activities of the worker, and the means by which the employer can look to support the employee affected (including exploring reasonable adjustments to help the individual return to work). In particular, the guidance suggests that occupational health assessments and flexible working patterns represent options available to employers when looking at ways to support employees.
Whilst recognising the diverse range of symptoms and potential effects of employees, the ACAS guidance also reminds employers that normal rules in relation to sickness absence and sick pay will apply when someone is off work because of long COVID, explaining – in their view – all other avenues should be explored before advancing to a capability procedure for any employee suffering from long COVID.
Will long COVID be considered a disability?
Whether or not long COVID will be regarded as a disability under the provisions of the Equality Act 2010 (the “EQA”), is a question that will undoubtedly need to be considered and clarified. Ultimately, the answer to this question will need to be determined by the Employment Tribunal. However, whilst we wait for such clarification, it is important that employers take notice of the ACAS guidance, and look to actively support their employees.
Under the EQA, a person is recognised as having a disability if they have a mental or physical impairment that has a “substantial and long-term adverse effect” on that person’s ability to carry out normal day-to-day activities. Due to the nature of long COVID, being a condition that is relatively new and one that is not fully understood at present, the “long-term” requirement of the EQA’s definition of disability is where there is likely to be heated debate and/or disagreement where a question of disability status arises in relation to long COVID. This is because in order for an impairment to be considered long-term, the EQA provides that the impairment needs to;
- have lasted for at least 12 months; or
- is likely to last for at least 12 months; or
- is likely to last for the rest of the life of the person affected.
There appears to be less controversy in relation to the “substantial” effect of long COVID, with the ACAS guidance itself noting that the long COVID symptoms could affect someone’s ability to work or cause them to take sickness absence. That said, for long COVID to be considered a disability in the particular circumstances, the effect on the individual will need to be more than a minor or trivial one. This highlights that it would be prudent for employers to seek specific medical (usually Occupational Health) advice in such circumstances.
In any event, the current ACAS guidance notes that employers should focus primarily on the potential reasonable adjustments that can be made for affected employees, as opposed to focusing on whether or not the individual in question has a disability.
Other potential forms of discrimination
In addition to exploring long COVID and the implications for employers from a disability discrimination perspective, the ACAS guidance also highlights the fact that long COVID appears to have a more severe and disproportionate effect on particular groups of people, such as elderly people, ethnic minorities, and women. Employers should bear this in mind when dealing with long COVID and how absence management is handled in each instance.
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