Is long COVID a disability? What employers need to know

Although many people with COVID-19 recover within weeks, some people continue to suffer symptoms that can last months afterwards or may experience new or recurring symptoms later – known as a condition called ‘long Covid’. This can affect anyone that catches the virus no matter how mild.

In a recent case Burke V Turning Point Scotland, an employment tribunal ruled that long Covid can qualify as a disability. While this does not bind any other tribunal decision it isn’t the first ruling to classify long Covid as a disability and is unlikely to be the last. So, what is classed as a disability and where does long Covid fit in?

What the law says

Under the Equality Act 2010 a person’s condition is deemed a disability if:

It’s long-term i.e., must last or be expected to last for at least 12 months or the rest of the person’s life, if shorter.

Is substantial i.e., more than minor or trivial.
Affects the person’s ability to carry out normal day to activities.

Individuals with progressive conditions, that get worse over time can also be classed as disabled, and the Equality Act 2010 automatically classes an individual as disabled from the day of diagnoses for the following conditions: HIV infection, Cancer and Multiple Sclerosis. This means that any other condition, such as Long COVID, is not automatically deemed a disability, but could be if the effects of that condition meet the stipulations of the Equality Act 2010. This is a broad definition and there are other factors to be taken into consideration, such as the effect of treatment on the condition, which can make the definition of disability more complex. The discussion of the various symptoms related to long COVID continues, and whether they would constitute as a disability under the Equality Act.

Case-by-case

Although long COVID isn’t among the list of conditions in the Equality Act as one which is automatically a disability, some individual cases will meet the requirements and may, therefore, class as a disability.

Employers should be aware that an individualised assessment is necessary to determine whether a person’s long COVID condition, or any of its symptoms, substantially limits a major life activity. Long COVID is still a new illness, and it may take time to understand it fully. It can affect a person’s day-to-day activities and it is currently understood that it can last many months, or come and go for several months, even years.

It’s therefore best for employers to focus on the reasonable adjustments they can make, rather than try to work out if an employee’s condition is a disability.

Avoiding discrimination

To support workers affected by long COVID and avoid the risk of inadvertent discrimination, we recommend that employers continue to follow existing guidance when considering reasonable adjustments for disabled people and access to flexible working, based on circumstances of individual cases.

Since long COVID has been found to affect older people, ethnic minorities and women more severely, employers must also be aware not to discriminate by age, disability, ethnicity or gender.

Rights for those with long Covid as a disability

People whose long Covid condition qualifies as a disability are entitled to the same protections from discrimination as any other person with a disability under the Equality Act 2010.

For example, this may mean that employers will sometimes need to make reasonable adjustments to the way that they operate to accommodate a person’s long COVID-related limitations.  These reasonable adjustments may include:

Reduced hours, phased return or working a more flexible day with longer or more frequent breaks.
Paid leave for medical appointments.
Support with workload.
A change to duties so that a member who has trouble speaking due to breathlessness or persistent cough does not have to talk to service users or other staff.

Temporary redeployment from a physically demanding role to an office or home-based role for a member who finds walking and standing difficult.
Period(s) of disability leave, not included for the purpose of sickness absence monitoring, so that the member can take time off to recover or to get through recurring symptoms.
Changes to performance targets so that a member with ‘brain fog’ has more time to complete tasks.

As the laws in the UK currently stand, employers must approach claims of long COVID case-by-case and be mindful of disability, age, ethnicity and gender discrimination. Meanwhile, employers are encouraged to focus on making reasonable adjustments to support employees who may be experiencing symptoms of long COVID as small changes could go a long way.

For more information and guidance on how to deal with Long COVID and discrimination in the workplace, contact our expert Hertfordshire based HR team >>