The Human Rights watchdog, the Equalities and Human Rights Commission (EHRC), caused a Twitter flurry earlier this month by tweeting that “without case law or scientific consensus, EHRC does not recommend that 'long Covid' be treated as disability”.
Disability rights groups amongst others were not impressed by this and asked for an apology – it was not forthcoming but EHRC has accepted that long Covid could be a disability.
The main issues at the heart of this spat are as follows:
Long Covid is officially 'post Covid-19 syndrome'. The National Institute for Health and Care Excellence note that 'signs and symptoms that develop during or after an infection consistent with Covid-19, continue for more than 12 weeks and are not explained by an alternative diagnosis.' There are many symptoms but the top four appear to be fatigue, shortness of breath, muscle ache and difficulty concentrating.
A disability as defined by the EqA 2010 is a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out their normal day-to-day activities. Long-term effect means 12 months or more. If an employee has a disability which meets this definition they are protected from discrimination under the EqA 2010 and their employer has a duty to make reasonable adjustments to counteract the disadvantage of their disability.
Long Covid is not an automatic disability. Only three conditions automatically come under the definition: cancer, HIV and multiple sclerosis. In June 2021, the TUC called for long Covid to be added to that list. Given the variation in symptoms and severity, it is unlikely that the Government will ever make it an automatic disability.
This leaves employers with the question of how do they respond to employees who are suffering from long Covid and may be absent for long periods of time, unable to carry out their previous job or unpredictable and unreliable because of the effect of long Covid?
Obviously, a comprehensive answer is beyond the scope of this blog post, however, I would advise employers to start with the following:
- Take every case as an individual – there are so many symptoms of this disease, so many unknowns and very little verified research or guidance.
- Involve professional assistance as soon as you are able – use occupational health to understand the employee’s symptoms, how you can assist the employee, and whether there are any prospects of them returning to their full duties in the foreseeable future.
- Be informed – keep updated about the disease and its developments and how it affects people.
- Whilst Covid-19 is not automatically a disability, depending on the severity of the symptoms and the length of time the employee has suffered, it could meet the EqA 2010 definition. Ensure you monitor the disease with medical help to identify if you have additional obligations under the EqA 2010.
- Keep communication with the employee concerned as far as you are able - they are suffering from a disease that no one really knows how it could develop, worsen or improve and so they will be worried for their future. Do not 'shelve' the problem because it is too hard to handle or the issue is unknown.
- Listen to our podcast on the issue which unpacks this advice further (listen here) and get in touch for further advice.
“Given that ‘long Covid’ is not among the conditions listed in the Equality Act as ones which are automatically a disability, such as cancer, HIV and multiple sclerosis, we cannot say that all cases of ‘long Covid’ will fall under the definition of disability in the Equality Act."