“Long Covid” refers to the fact that some people seem to suffer from the effects of Covid-19 for significantly longer than others, sometimes for weeks and months after first contracting the illness. Long Covid undoubtedly presents difficulties for employers managing staff absences and decreased performance or productivity from employees who are suffering from an illness that is so new that little is known about the longer-term implications.
Whilst many (not all) employers will undoubtedly manage employees suffering from Long Covid sympathetically, a key question will be whether Long Covid qualifies as a disability under the Equality Act 2010 meaning that a) reasonable adjustments to workplaces / working practices may be needed and b) employers are exposed to disability discrimination claims for employees suffering from Long Covid where those employees feel they have been treated less favourably.
A disability is defined in the legislation as a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on the person’s ability to do normal daily activities. It is key to remember that “normal day to day” activities must be affected, not just the employee’s ability to work.
Is Long Covid a disability and does it matter?
The TUC has called for Long Covid to automatically be treated as a disability in the way that cancer and HIV are. This would mean that anyone with the condition will be considered to be disabled within the meaning of the Equality Act without the need for an in depth assessment of the impact Long Covid has on the individual’s day to day activities and whether or not the condition is “long term”. If adopted, the TUC’s proposals would be a significant extension to the law.
ACAS has suggested in recent guidance (at https://www.acas.org.uk/long-covid) that employers should make reasonable adjustments to accommodate people who have Long Covid. Whilst this perhaps implies that they also think that Long Covid should be covered by equality legislation, ACAS has not been explicit about their position on this. Instead they appear to be taking the view that employers should focus on what reasonable adjustments can be made to support employees with Long Covid, rather than getting caught up in whether or not the employee is “disabled” within the meaning of the legislation.
The government has yet to respond to the TUC’s call but employers are likely to have serious concerns about the approach being requested by the TUC.
Firstly, it is worth noting that a “disability” is already well defined by legislation and case law, affording significant protection to anyone with Long Covid where that definition is met. If Long Covid is to be classed as a disability from the outset, on the basis that it could have “long term” effects that may be “substantial”, employers will be concerned that their obligations to make reasonable adjustments could apply to employees who may suffer from Long Covid but only for a matter of weeks rather than the longer term envisaged by the legislation.
Secondly, employers will be concerned that once that door is opened, other illnesses and conditions which are currently not classed as a disability from the outset, but may (or may not) similarly have longer term impact will not be far behind.
There are many illnesses and conditions that have long term effects for some and not for others, which presumably, is the basis for the definition of disability in the legislation being drafted in the way that it currently is. Whether the concept of “long term” requires looking at is a different question – and perhaps one more suited to addressing the protection of employees who may suffer from less long-term negative effects but still need protection whilst their illness or condition impacts their “day to day” life – and perhaps their ability to perform the duties of their role.
Is the real question, whether governments should be legislating to protect employees where any illness or condition has a substantial negative effect on an individual’s day to day life, whether temporary or longer term, at least for as long as that illness or condition lasts? Evidentially burdensome and administratively cumbersome, but perhaps enshrining in legislation that which responsible employers already do?