Obligations to disabled employees highlighted by coronavirus pandemic

Amy Hextell of Pinsent Masons, the law firm behind Out-Law, said data released by the Office for National Statistics (ONS) in July showed that males and female of all ages whose daily life was limited by a disability were significantly more likely to die of Covid-19 than those who were not disabled.  In addition, those with disabilities have been impacted by a reduction in available care, health services and the need for social distancing.

The ONS said males aged between nine and 64 years whose activities were limited a lot by a disability had a rate of death involving Covid-19 that was six and a half times greater than people who are not disabled, while for females it was 11.3 times greater than those not disabled. Mortality rates for those aged 65 years or over were also substantially higher for disabled people.

The risk of death from Covid-19 for those whose daily activities were limited a little or a lot by disability was still higher than for non-disabled people when the data was adjusted for socio-economic factors, the ONS said.

Hextell said that the pandemic also presents particular challenges for employers and disabled employees, and that employers must be careful to ensure that they continue to meet their obligations to make reasonable adjustments for disabled employees, which should be reviewed in light of the different working environment we are now all operating in.

“Employers have a positive legal obligation to make reasonable adjustments for those employees with long-term health conditions which have a substantial adverse impact on their normal activities. This will mean adopting an increasingly proactive and creative approach to engage with disabled employees about their specific situation but ensuring that any decisions taken in responding to the pandemic do not directly or indirectly discriminate against any person or groups of people,” Hextell said.

“The duty on employers to make adjustments is complex and what will be ‘reasonable’ will differ in every case. Employers are encouraged to take specialist employment law advice to mitigate legal risk now and in the future, improve employee engagement and adapt to the ‘new normal’,” Hextell said.

The Equality and Human Rights Commission has issued guidance on dealing with disability and Covid-19 for employers, focusing in particular on the need to pay attention to reasonable adjustments and the different support disabled employees may need.

“What this tells us it that the impact of Covid-19 on disabled people is disproportionate," Hextell said. "This is clearly a concern generally but as employers, it highlights the need to think carefully about the needs of those employees who may meet the employment law definition of a disabled person.”