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Duty of Care Responsibilities Grow as Long COVID Newly Recognised as a Disability

Since 2020, organisations have strived to understand the short and long-term impact of COVID-19 on their people and their operations. As re-infections and new variants emerge, the pandemic and its potential detriment on business resilience is ever-changing.

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Since 2020, organisations have strived to understand the short and long-term impact of COVID-19 on their people and their operations. As re-infections and new variants emerge, the pandemic and its potential detriment on business resilience is ever-changing. 

WHAT IS LONG COVID?

Termed ‘long COVID’ or ‘post COVID-19 condition’, the WHO defines it as occurring in an individual who has had a probable or confirmed SARS CoV-2 infection, usually within 3 months from the onset and with symptoms that last for at least 2 months that cannot be explained by an alternative diagnosis. 

The common long COVID symptoms include fatigue, shortness of breath, cough, joint or muscle pain, loss of smell or taste and chest pain. Less common symptoms have also been discovered such as cognitive impairment, difficulty sleeping, headache and intermittent fever. 

For those that suffer from long COVID, it can cause severe disruption to their wellbeing and impact their capacity to work. 

HOW IS LONG COVID IMPACTING EMPLOYERS

Our understanding of how long COVID impacts the workplace has evolved as we learn more about the disease’s transmission, infection rates and long-term symptoms. This evolution impacts those who manage a workforce and are looking to ensure stability within their operations. 

In the first legal case of its kind in the United Kingdom, an employee was classed as disabled due to their long COVID symptoms. After contracting COVID-19 they did not return to the workplace and were later dismissed. 

As a preliminary issue, an employment tribunal had to determine whether the long COVID symptoms satisfied the statutory definition of disability under section 6 of the United Kingdom’s Equality Act 2010 (e.g. whether they amounted to a physical or mental impairment which had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities). Under the definition, the effect of an impairment is long-term if it has lasted for at least 12 months, is likely to last for at least 12 months, or is likely to last for the rest of the life of the person affected. 

Although the employee’s long COVID had not yet lasted for 12 months at the date of the alleged discrimination, the tribunal found that it was likely to last for 12 months. As the employee’s condition met all of the elements of the meaning of ‘disability’, the tribunal concluded that he was disabled.  

In light of this case, employers should be mindful that employees suffering from long COVID could have a disability (providing their symptoms meet the above definition) and receive protection from unlawful discrimination. As organisations prioritise return to work plans, their policies must support the health, safety and wellbeing of their people in line with their responsibilities as employers. This will also help to mitigate financial or reputational risks. 

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RECOMMENDATIONS FOR EMPLOYERS

This case will likely not be the last and we may see similar challenges in jurisdictions outside of the United Kingdom. For employers and all global organisations, we recommend considering the below actions:

  • Educate and communicate – Open dialogues and accessible content will ensure your people are well informed and educated about the condition and its symptoms. This should also encourage your employees to communicate on a voluntary basis their long COVID condition to their manager for better awareness.
  • Support your long COVID employees – Safeguarding the health and wellbeing of your employees should always be a top priority as a critical pillar of your Duty of Care. If you are aware that a member of staff has recently had COVID, be alert to the possibility of symptoms continuing after the infection has resolved or new health problems arising. Responsible employers need to be aware that long COVID may affect the employee’s ability to perform normal day-to-day activities. Depending on applicable disability discrimination laws within your local jurisdiction, it could amount to a disability. Employers will need to take care when managing such employees to reduce the risk of unlawfully discriminating against them on the grounds of disability.
  • To encourage a productive work environment, consider a formal occupational health or return to work assessment for those employees who have long COVID symptoms to ensure they receive the appropriate support.
  • Review policies, standards and procedures – Consider whether any updates are required to accommodate long COVID conditions  and their potential impact on absence levels and performance.
  • Consult with your local government authorities or respective law firm – This is an evolving area and so to better understand the legalities and local government guidance, we encourage you to consult with local experts. 

HOW WE CAN HELP

From reviewing return to work policies to facilitating training or occupational health reviews, our medical experts have been at the fore of supporting our clients in mitigating the risks and impact of the pandemic on their workforce. 

Our consulting services will help you identify and adapt your current policies in place accordingly, to fully cover the long COVID challenges.

For more information on the legal implications and related employment queries, please contact Nicola Rabson (nicola.rabson@linklaters.com) or Jean Lovett (jean.lovett@linklaters.com) at Linklaters. 

COMPLETE THE FORM TO LEARN MORE ABOUT LONG COVID FROM OUR HEALTH EXPERTS