Is Long COVID a Disability?
A new report recommends that the Government officially classify long COVID as a disability – but what does the existing law say and what would change if the recommendation was implemented?
A report produced jointly by the Trade Union Congress and Long Covid Support (a registered charity to help people struggling to recover from Covid) has called for the UK Government to designate long COVID as a disability. The report includes a survey of over 3,000 people suffering from long COVID, with two-thirds of respondents claiming that they have been treated unfairly at work. Examples of unfair treatment include harassment, being accused of dishonesty regarding their symptoms, and threats of disciplinary action. One in seven respondents said that they had lost their job.
Long COVID is an umbrella term covering a variety of symptoms experienced by people after contracting COVID-19, including chronic fatigue, breathing difficulties, and brain fog. While most people recover from the after-effects of COVID within a couple of weeks, long COVID sufferers continue to face these symptoms for months, or even years. According to the Office of National Statistics, as many as two million people in the UK may be suffering from long COVID. The TUC and Long Covid Support have warned that failing to account for these widespread consequences of COVID will result in “new, long-lasting inequalities”.
Currently, a person is considered disabled for the purposes of the Equality Act if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. A person with long COVID could therefore be disabled, given that symptoms can last for years, and that fatigue, breathing difficulties, and brain fog could all have a substantial impact on an individual’s ability to carry out day-to-day tasks. This was confirmed in Burke v Turning Point Scotland, where the Employment Tribunal found that Mr Burke, who suffered from severe headaches and fatigue due to long COVID, was disabled.
However, the TUC and Long Covid Support report urges the Government to issue clear guidance to employers, confirming that long COVID is a disability. This is on the basis that many employers may be unfamiliar with how serious long COVID symptoms can be and may view claims of long COVID as a catch-all excuse for poor performance or work ethic. It is hoped that clear guidance on this issue will help to combat the scepticism which workers may face.
The report also recommends that long COVID sufferers be entitled to reasonable adjustments at work, including flexible working, disability leave, and phased returns to the workplace. Additionally, the reports suggests that COVID-19 be classed as an “occupational disease”. This would enable workers who contracted COVID through their work to seek compensation.
It remains to be seen whether the Government will take any action in response to this report. On the one hand, officially classifying long COVID as a disability may be seen as unnecessary, given that, where the symptoms are sufficiently substantial and long-term, instances of long COVID already satisfy the Equality Act definition.
However, this report indicates that long COVID sufferers are disproportionately facing unfair treatment in the workplace, perhaps due in part to a lack of awareness around the condition and the severity with which its symptoms can manifest. With this in mind, Government-issued guidance may go some way to combatting short-term ignorance and adequately protecting those with long COVID.
If long COVID joined the list of “deemed disabilities” in the Equality Act, there would likely need to be an agreed and clear definition as to what constitutes long COVID for the purposes of employment protection. Other deemed disabilities under the Equality Act, such as cancer and severe sight impairment, are more established medical conditions and are likely to be easier to identify and diagnose.
Even if the law does not change, employers should proceed with care when dealing with employees who claim to suffer from long COVID. In the first instance, employers should look to gather as much information as they can from the employee regarding their condition and obtain medical evidence. Employers may need to consider what reasonable adjustments could be made to the workplace or to the employee’s working practices to account for any long COVID symptoms, which may include allowing the employee to work flexibly, or providing for more frequent rest breaks.
If you require advice on managing an employee with long COVID, or another medical condition, please do get in touch at [email protected]