Laura Morrison on ACAS’ new Covid-19 guidance
By Laura Morrison
What is long Covid?
Long Covid means suffering from prolonged Covid-19 symptoms for weeks and, in some cases, several months after initially contracting the virus. Employers should be mindful that the severity of symptoms can vary significantly. There does not appear to be a link between the severity of symptoms and the length of time it takes to recover fully. Those with long Covid may experience fatigue, shortness of breath, chest pain, “brain fog”, insomnia and dizziness, amongst other symptoms.
One of the most potentially challenging aspects of long Covid is that symptoms often come and go. Employees may therefore feel that they are fit and able to work some days and unable to work at all on others. The key question for an employer is how should they manage this unpredictability?
How can employers manage the risk of long Covid?
The fact the effects of long Covid can “come and go” makes it harder for employers to manage in the workplace. The ACAS guidance lists a number of practical tips to help employers navigate their way through long Covid queries.
- Approach long Covid in the same manner as you would any other long-term or intermittent health problem.
- Do not let absences, whether longer term or frequent short term, run on without discussion.
- Engage with employees early on regarding their symptoms and hold return to work interviews.
- Use Occupational Health on an ongoing basis to assist with getting employees back to work, to help manage the unpredictability of the illness and to understand the steps that can be taken to better support employees in the workplace.
Adjustments may include allowing the employee to work flexible hours or work remotely.
Can long Covid be a disability?
“Disability” is defined under the Equality Act 2010 as having “a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities”.
“Substantial” means anything more than minor or trivial. This is a relatively low threshold and it will be met if an individual demonstrates that their impairment has prevented them from carrying out their day-to-day activities. A “long-term” impairment is anything lasting 12 months or more. In order to meet this test, the individual does not need to have experienced the impairment for 12 months or more – it is sufficient if it is reasonably likely that the impairment will last for at least 12 months.
As a result, it seems quite possible that long Covid could, in at least some cases, meet the definition of a disability. ACAS encourages employers to take pre-emptive measures to avoid potential disability discrimination claims arising. ACAS also recommends employers make “reasonable adjustments” for employees suffering from the disease.
What are reasonable adjustments?
In the context of long Covid, reasonable adjustments may include allowing the employee to work flexible hours or work remotely. You may also have to consider whether it would be reasonable to temporarily reduce and/or change the employee’s duties and working hours. Whether an adjustment is “reasonable” will depend on the individual circumstances, including the size and resources of the employer.
You should also consider Occupational Health’s recommendations when deciding what reasonable adjustments to implement. Once you make an adjustment, keep it under regular review to ascertain whether it is still (a) required and (b) reasonable. Remain flexible and be prepared to try alternative adjustments if the first approach is not successful.
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