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Is long COVID a disability?

As many have reportedly experienced long COVID symptoms, will the effects of this on their wellbeing be classified as a disability and what rights will these people have when returning to work?

13 April 2021

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How long do COVID symptoms last?

Those with mild cases of coronavirus can usually expect to recover within about two weeks although, for some, the symptoms associated with the virus can continue for months after contraction, this is known as 'long COVID'. Research conducted by King's College London found that around two per cent of those people affected in the UK reported symptoms that lasted more than three months, predicting that at least 60,000 people affected in the first wave would have long COVID.

Long COVID symptoms include breathlessness, fatigue, fever, heart palpitations, joint and muscle pain, insomnia, lack of concentration as well as mental health issues such as anxiety and depression.

How is disability defined in The Equality Act 2010?

You're covered by the Equality Act 2010 for disability if you have a 'physical or mental impairment' that has a 'substantial' (more than minor) and 'long-term' (lasted for 12 months or likely to last for at least 12 months) negative effect on your ability to do normal daily activities.

Will long-term COVID be covered by The Equality Act 2010?

As the UK surpasses a year since the first lockdown began, it is still difficult to determine whether long-term COVID symptoms will last for 12 months or longer to meet the conditions of disability under The Equality Act. Long COVID syndrome affects people in different ways, though for some it could be having a substantial effect on their ability to carry out daily activities and capability to complete tasks associated with their employment.

Whether or not long COVID will be classified as a disability will be determined by an Employment Tribunal. Reviewing a disability under these conditions can be complex as the tribunal will have to establish whether impairments are 'substantial'. The severity of cases of long COVID differ and the impact that the effects have depends on the individuals' circumstances.

What should employers be doing?

As with any period of absence from your employment duties, there are certain actions that employers could take to make your return to work an easier transition. If you’re experiencing long-term effects of COVID and are worried about your return to work, you may be able to request the following from your employer if they don’t offer these in advance:

  • Return to work meetings is the best practice for those who’ve had long absences. In these meetings you can discuss any additional support you feel you may need to be able to fulfil your duties whilst still suffering from the effects of the virus
  • Your employer may be able to offer counselling services for those who were seriously ill or are suffering from mental health conditions due to the alterations the virus has had on their wellbeing
  • Discussion before returning of whether any reasonable adjustments need to be made to your original duties and working hours
  • Regular communication between yourself and your line manager, as this is a new medical condition, and both parties will be learning to adapt to the lasting effects

What will happen if long COVID is classified as a disability?

If long COVID is identified as a disability, it will be covered within one of the nine protected characteristics of the Equality Act 2010, meaning your employer may be breaking the law if they treat you less favourably due to the impact of your continuing symptoms after contracting coronavirus. This means you could bring a claim against your employer if, for example, they unfairly dismiss you on the grounds of the disability or because of punctuality or performance issues related to the disability, and if they fail to make reasonable adjustments such as flexible hours that would make work more manageable.

Unfortunately, COVID-19 has placed great uncertainty on employers and proceeds to do so as we continue to learn and adapt to how this will shape the future of workforces. Whilst we await a decision from the Courts and Tribunals as to how COVID-19 long-term effects will be approached, employers should treat those sufferers with fairness and understanding, taking into consideration what actions can be made to relieve any additional stress concerned with returning to work.

If you’re placed at any disadvantage in work because of a disability our experienced employment solicitors are here to help and offer expert advice on your situation. Call us today on 0161 830 9632 or request a call back.

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