A quarter of employers facing long-Covid absence issues

Out-Law News | 11 Oct 2022 | 10:37 am |

Amy Hextell tells HRNews about when long-Covid is treated as a disability   
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  • Transcript

    A quarter of employers are managing long-Covid health issues as the number of people testing positive for the virus across the UK rises once again. In response, a third of firms are providing flexibility with working hours or work location, while a fifth are offering workers with long-Covid additional rest breaks. So what level of support can employees expect? If someone has long-Covid, what protection do they get under UK legislation. We’ll consider that.

    Personnel Today reports on the survey of 409 organisations by the HR and health and safety support firm WorkNest. They questioned 409 organisations and found the vast proportion of the workforce is still suffering with lingering coronavirus symptoms.

    A reminder. Long-Covid, or Post-Covid 19 Syndrome, is defined by NICE (National Institute for Health and Care Excellence) as: 'signs and symptoms that develop during or after an infection consistent with Covid-19, which continue for more than 12 weeks and are not explained by an alternative diagnosis.’ ONS data shows that, as of last week, 2.3 million people in the UK have long-Covid. 

    One of the issues covered in the article is whether ‘long Covid' meets the threshold of a disability under section 6 the Equality Act. So a person has a 'disability' if they have: (i) a physical or mental impairment and (ii) which has a 'substantial' and 'long-term' adverse effect on the ability to carry out normal day-to-day activities. That is an issue for the tribunals to decide, treating each case on its own merits. As the reported cases show us, sometimes a claimant with long Covid will be able to overcome the hurdle and they can take their claim forward, other times they fail at that stage. 

    The TUC* is not happy that individuals are forced to go to tribunal to get a ruling on whether or not they are protected and in July they called on the government to recognise long-Covid as a disability in its own right. The TUC website quotes General Secretary, Frances O’Grady – she wants everyone with long-Covid automatically treated as having a disability. That would require a change to the law but, so far, the government has shown no willingness to do that. Earlier I spoke to Amy Hextell about that and she told me why the government is unlikely to change its view:  

    Amy Hextell: “The calls are for more recognition of the fact that this should be a disability and protection is needed but, actually, the Equality Act already provides coverage, I would say, and protection for employees who are suffering with long Covid because the disability definition in the Equality Act is where somebody has a physical or mental impairment, which has a substantial adverse effect on their ability to do normal day to day things and that impact has either lasted 12 months, or is likely to last 12 months. So, it could well be the case that employers are already having to manage employees who have had long Covid and it would qualify as a disability as a consequence of which employers need to be ensuring that they're making reasonable adjustments, or that they aren't discriminating, but actually I don't think that there's a need for a change in the law to offer protection because, really, long Covid, and the symptoms associated with it, and any absence associated with it, is really something employers should just be managing in the way that they would any other long term absence, or somebody with an underlying health condition, who perhaps isn't absent long term, but who is suffering the effects of the condition on a long term basis. So, it's something that I think there's a bit of misunderstanding about in the media, and something that employers need to be mindful of, but perhaps don't need to be panicking about.”

    Joe Glavina: “So what should employers be doing now Amy? What’s the advice we’re giving to clients on the issue of long Covid?”

    Amy Hextell: “So the advice that we're giving to employers around long Covid, and absence related to Covid, is really similar to that which we would be giving in any other long term absence situation or where there's an underlying health condition, and that is to be making sure that you are engaging with the employee, discussing their condition with them, understanding what they feel able and not able to do, and getting a bit of a prognosis as far as you can. Something that's really helpful and critical, I think, really, in that is making sure that you are engaging with occupational health providers, where at all possible, because, you know, it is quite difficult in some of these cases to understand what the prognosis is but, of course, for an employer, the question is well how is how is this impacting on work and occupational health are probably in the best position to be providing medical advice specific to the role and the type of employment that the employees engaged in. So, definitely seeking advice from occupational health and then I think proactively managing absence. Certainly at the start of the pandemic I think a lot of employers, probably quite rightly, took the view that Covid-related absence should be treated differently and perhaps didn't count it towards absence triggers, for example, or things like that but, actually, the longer this goes on, and particularly with long Covid where we are still uncertain about how long the effects may last on an individual, I think it's important to be proactively managing absence in accordance with your normal absence policies and processes. There is just a word of caution around that to add, and that's the risk of indirect discrimination or the need to make reasonable adjustments. So, where for example, an employer has a requirement or a policy, or adopts a certain way of doing things, and that is going to cause a disadvantage for somebody with long Covid if that amounts to a disability, there is a need to avoid that disadvantage as best as you can. So, for example, I know not everybody's been working from home during the pandemic, but many have been, and lots of employers are talking to us about the return to the office now, mandating people come in two or three days a week, and that sort of policy and blanket approach is fine except that there needs to be some caution exercised, and some discretion, in cases of people perhaps with long Covid who would be disadvantaged by that requirement. So, it's that slightly more subtle issue really that the employers might miss and could get them into trouble.”

    The employment team has written extensively on the subject of long-Covid, including its impact on mental health and wellbeing. That’s ‘Employers must act on mental health impact of ‘long Covid’ and we have put a link to it in the transcript of this programme. 

    LINKS
    - Link to Out-Law article: ‘Employers must act on mental health impact of ‘long Covid’

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