Episode 158: We explore the ways organisations can be designed to enable flexibility in the face of a crisis, how organisations can and should respond to the coronavirus outbreak and how best to support your workforce through this difficult period.
Q: What is long COVID, and is an employee with it suffering from a disability?
Long COVID is a shorthand term for the long-term adverse effects of coronavirus. Many employees will feel better in a few days or weeks after coronavirus and the majority should make a full recovery within twelve weeks. However, for a significant minority of people, long-term symptoms of coronavirus can last for an extended period after an initial COVID-19 infection.
Symptoms are extensive, ranging from exhaustion, breathing difficulties and breathlessness, continued fever, anxiety and stress, to muscle weakness, and the inability to walk. Others have heart or neurological problems. Lung abnormalities seem to last many months after infection and there seem to be post-viral fatigue symptoms similar to ME or chronic fatigue syndrome. There is increasing medical evidence that a small but significant minority of people who contract COVID-19 can still be seriously affected months after initially falling ill. As the virus is so new, medical knowledge about the effects of long COVID are still the subject of extensive research.
Long COVID symptoms can affect people of all ages, regardless of underlying health conditions although women under 50 are 50% more likely to suffer from long COVID than men in the same age group.
Risk factors linked to long COVID include age, weight, asthma and ethnicity. There will be some employees who are unable to return to full-time work for long periods and employers must handle long COVID in an even-handed manner to avoid allegations of indirect race, sex or age discrimination.
Equality Act and long COVID
Sufferers of long COVID may be classed as having a disability although this is untested in the courts. Long COVID is likely to exacerbate a pre-existing condition (for example asthma) so some sufferers are likely to meet the Equality Act 2010 definition of disability, and other protections in the Equality Act may be triggered as well.
To be protected from disability discrimination under the Equality Act 2010 a person must 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.
An employee with long COVID who has breathing difficulties and muscle weakness will have a physical impairment which may put them in this category. The effect will be substantial in some employees and not in others, depending on the severity of their symptoms.
The adverse effect of the impairment must be long-term which means:
- it has lasted at least 12 months
- it is likely to last at least 12 months, or
- it is likely to last for the rest of the life of the person affected.
Employers must look at the specific facts of each case but some long COVID cases will meet the definition for protection as a disability. Employers can potentially face direct disability discrimination or discrimination arising from a disability claims if they treat long COVID employees less favourably because of their condition. They should therefore consider making reasonable adjustments, for example home working, adjusting working hours or a phased return. Employers should assume that employees may be protected by the Equality Act disability definition. Even if long COVID is not proven to be sufficiently long term, at least some employees with it are likely to have conditions which are increased by or triggered by the virus. The CIPD has contributed to a guide by The Society of Occupational Medicine (SOM) which offers guidance from occupational health professionals on how workers can manage getting back to work after COVID-19 infection and long COVID. The COVID-19 return to work guide for recovering workers is available to download from the SOM website.
For more information on compensation see FAQ What do employers need to know about potential compensation for staff who have workplace long COVID claims? below.
Q: How do employers manage employees suffering from the effects of long COVID?
Employers can manage employees suffering from the effects of long COVID in a similar way to employees with other long-term conditions, although some extra considerations may be appropriate. There appears to be some similarities between long COVID and ME, and an employee may be more able to work on some days than others. Employers should consider the following as part of their management of the illness:
COVID risk assessments should be undertaken prior to the return of absentees. Employees with long COVID have already caught COVID once before, and may be vaccinated. However, they can be infected again so employers should follow appropriate measures to reduce risk.
Acas guidance on long COVID
Acas issued guidance which encourages employers to communicating effectively and sensitively with the employee about potential support, dialogue should start during their absence. As the employee recovers there may be discussions of a phased return, reasonable adjustments to assist employees in returning to their roles or adapting roles to symptoms which may be intermittent.
Employers should talk to employees in good time before their return to work, to address concerns. Employees may have health and safety concerns about returning to the workplace or about catching COVID again. They may be concerned about the effect of their existing illness on their capability. Employers should address issues and provide reassurance if possible.
The usual advice for long-term absences entails proactively managing absence and keeping an appropriate level of contact with the absent employee. Managers should follow any long-term absence procedures and understand the symptoms and reasons for any absences with the support of any occupational health advisers where appropriate. Obtaining occupational health input could be useful at all stages from establishing severity of symptoms and prognosis to consideration of recovery and the appropriate hours and duties during any phased return. Medical advice may be needed, and underlying health conditions may delay recovery.
Employers should follow a fair absence or sickness management process depending upon whether there is short-term or long-term sickness. There may be in-house capability or sickness procedures which relate to managing sickness absence, but these should take individual situations into account. A capability process leading to dismissal, should only be considered as a last resort.
Employees with long COVID should be entitled to company or statutory sick pay, in a similar manner to any other employees on long-term sickness absence. However, long COVID symptoms vary, so discussions with each employee will be critical to identify how it affects them, to assess the support needed by and tailor it to each individual employee. In addition, it should be remembered that:
- after normal sick leave provisions employers can consider allowing a phased return to work
- other ways to manage employee’s return include temporary or permanent adjustments to working hours and continued homeworking
- other reasonable adjustments can be considered to alleviate the employee’s problems as well as providing access to occupational health and employee assistance programmes
- there may be health insurance provision and employers will need to check if employees with long COVID are covered (see below). Some insurers already offer long COVID packages of rehabilitation time and therapy where staff can be referred by employers after an absence of four to six weeks.
Some employers have PHI, employer's liability or income protection insurance covering staff on long-term sick leave. Normally employees must meet eligibility criteria which can link to being disabled under the Equality Act 2010. Insurance policies may pay out and give full or partial salary when sick pay ends. It is thought that at least some long COVID sufferers will suffer from a disability and be entitled under PHI policies. Long COVID may exhibit related conditions like post-viral fatigue which are classed as disabilities.
Employees with long COVID may have a disability, so employers should consider what adjustments to duties, working from home or working hours could help them return to working or the workplace. Flexible working may be needed as people may be able to work better on some days than on others, as with those diagnosed with ME. Employers should avoid treating employees less favourably because of their high levels of sickness absence as this could be direct disability discrimination or discrimination arising from a disability. Line managers should be educated about how to use sickness absence policies and procedures in a non-discriminatory way. If managers are unsupportive or disengaged regarding any matters resulting from the pandemic then wider workforce relations can be damaged. As long COVID appears more prevalent in specific categories of people; older people, ethnic minorities, and women, employers also must avoid discriminating by age, disability, race or sex.
For further information see our Q: What is long COVID, and is an employee with it suffering from a disability? (above).
The CIPD has contributed to a COVID-19 return to work guide by The Society of Occupational Medicine (SOM) which offers guidance from occupational health professionals on how workers can manage getting back to work after COVID-19 infection and long COVID. The guide for recovering workers is available to download from the SOM website.
Q: What do employers need to know about the likelihood of claims from staff suffering from long COVID following alleged exposure at work?
There are many aspects employers should consider for staff who have caught coronavirus at work which has led to long COVID. At an early stage employers should check any employers’ liability, permanent health (PHI) or income protection insurance to assess the likelihood of long COVID claims being covered.
An employer's first priority must be to take steps to protect all staff from contracting COVID-19 at work. These measures will include having undertaken risk assessments and consideration of all aspects including testing, vaccination status, home working if possible, social distancing, ventilation, hand hygiene and shielding. Employers should also be able to show they have followed updated government and HSE guidance on how to mitigate virus spread and revisit measures regularly as new statistics, variants and guidance emerge.
Whatever steps are taken, some employers will face claims from employees with long COVID who attempt to prove that exposure occurred at work. It will, however, be difficult for employees to bring these claims as COVID-19 spreads rapidly and it will be difficult to prove an employer’s failure to take steps led to them catching the virus at work.
Although it will be difficult for employees to prove infection occurred in the workplace employers should follow the new ‘working safely’ guidance which places a high degree of responsibility on employers to honour their pre-existing legal duties to take care of employees’ health and safety.
In July 2021 there was additional advice for employers in areas of England where the Delta variant is spreading fastest which overall suggests that employers should consider if many of the previous precautions should continue, including social distancing, screens, ventilation, claening and other measures. Certainly employers who take steps to reduce workplace risk by following the updated sector based guidelines will reduce the risk of liability for spreading COVID-19.
In some cases, especially the health and care sector, there is an increased risk of infection and these employees may find it easier to show that they developed long COVID following a workplace infection.
Under the health and safety legislation and the law of negligence, employers have a duty to provide a safe working environment. Employers may be able to show they did not breach this duty if they can prove ongoing risk assessments and control measures were appropriately and properly enforced. One aspect of the legal tests will be if employers materially increased the risk of harm to their staff.
Other claims may be linked to disability legislation under the Equality Act 2010; see our Q: What is long COVID, and is an employee with it suffering from a disability?.
For information concerning employers’ options see Q: How do employers manage employees suffering from the effects of long COVID?
Q: What do employers need to know about potential compensation for staff who have workplace long COVID claims?
Legal guidance about long COVID compensation will be given by the courts when the first cases start to emerge. Employers who are sued for exposure to the virus in the workplace are statistically more likely to be in the healthcare sector and special NHS measures are set out below. For employees with long COVID in private healthcare or in other sectors their support will depend on sick pay policies or bringing a claim.
For many employees it will be hard to prove that the employer’s breach of duty led to infection but if claims do emerge employers should check the likelihood of any employers’ liability insurance or other policies covering the claim.
For employers in any sector who are found liable for breach of their duty of care, then compensation for long COVID will vary substantially depending on severity and length of symptoms. If liability is established, then many cases will be resolved by negotiation and settlement incorporating any insurance pay-out.
Compensation is calculated on the usual legal principles including:
- ‘special’ damages which are the financial losses, primarily lost wages and any medical bills; and
- general damages which address consequential and future problems caused including pain, suffering and distress.
Medical evidence is essential and other information can emerge which reduces compensation such as whether the employee increased their risk of infection in any way or whether there is evidence suggesting an employee has been exaggerated or falsified the extent of their symptoms.
If long COVID sufferers manage to prove discrimination at work compensation could also include financial losses because of the discrimination including lost wages. There could also be compensation for injury to feelings including depression or extra amounts following particularly bad behaviour by an employer called ‘aggravated damages’.
Other potential claims include unfair dismissal, unpaid wages, notice and unpaid holiday pay, and failure to follow the flexible working request procedure.
The government has been considering a compensation scheme for frontline workers who are suffering from long COVID and a parliamentary group has suggested it should be recognised as an occupational disease, as is the case in countries including Belgium, Denmark, France, Germany and Spain.
NHS initiatives include:
- over 60 specialist clinics to support individuals experiencing long COVID with specialist support and rehabilitation
- support for NHS staff including sick pay of up to six months full salary, followed by up to six months on half salary, depending on length of service.
DISCLAIMER: The materials provided here are for general information purposes and do not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. The CIPD is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance. You should consult the government website for the very latest information or contact a professional adviser for legal or other advice where appropriate.
If you have other queries about COVID-19 not covered above, please contact the CIPD member employment law helpline on 03330 431 217 or visit the Community pages
We know that our members and customers are facing challenging times and we are here to help you. Due to a high number of calls we apologise that your wait time may be longer than usual. We appreciate your patience and will connect you to an expert adviser as soon as we can.
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