Long Covid and Employment Law Implications

Covid is still here, although under much better control.  However, there are increasing numbers of us living with Long Covid with long-term symptoms and debilitating effects.  How does this impact on an employer’s duties in the workplace?  Richard Gvero, Joint Senior Partner and Head of Employment, explains.

Does it not impact in the same way as any other medical condition and the need to manage absence?

Yes and no.  Long Covid could amount to a disability for the purposes of the Equality Act 2010.  “Disability” is one of the protected characteristics under the Act imposing added duties upon the employer.

When would Long Covid amount to a “disability”?

The condition is not automatically a disability but if it amounts to a physical or mental impairment which has a substantial and long-term adverse effect on an employee’s ability to carry out day-to-day activities, it will come within the protection of the Act.

What does “long-term adverse effect” mean?

The “adverse effect” needs to be more than minor or trivial and needs to affect one’s day-to-day functioning whether physically or mentally.  “Long-term” means a condition that has, or is likely to last,12 months or more.

What additional duties does the Equality Act 2010 impose in respect of a disabled employee?

An employer is required to make reasonable adjustments to facilitate the continuing employment of the disabled employee.  This may mean, for example, being prepared to adjust working times, allow rest breaks or working from home, if feasible.  Also, an employer must not discriminate directly or indirectly against the disabled person.  This is in addition to the usual fairness and reasonableness requirements in respect of an ill employee and their absence.

Can an employer assess the employee’s ability to work and take appropriate action?

No, the employer must obtain appropriate medical input whether from occupational health or a specialist before making any decisions.  The obtaining of such medical input also amounts to a “reasonable adjustment”.

What are the consequences of discriminating against a disabled employee with Long Covid?

With discrimination claims, there is no compensation limit.  The employee can claim for uncapped future losses, including loss of earnings.  They can also claim for injury to feelings, which in extreme cases can be up to £49,300.

An employee with Long Covid has been absent for six months.  Can I just dismiss them?

Yes and no.  Yes, if you have conducted a fair process within which you have obtained proper medical input. The prognosis would need to be that the employee will be unable to return to work in the foreseeable future and the impact on the business is such that the employer cannot reasonably sustain further absence.  No, if you simply dismiss them.

If you have staff who have Long Covid or a disability and have any questions about your obligations as an employer, please get in touch with Partner and Head of Commercial and Head of Employment, Richard Gvero.

Here to Help

If you have staff who have Long Covid or a disability and have any questions about your obligations as an employer, please get in touch with Partner and Head of Employment, Richard Gvero.

Find out more about our Employment Law Packages, Employment Law Health Check, HR and Employment Law Training and the Longmores Employer Assistance Package (LEAP) with optional insurance to protect you against the costs of employment tribunals, legal fees, settlements and financial awards in the event of a dispute.

Please note the contents of this article are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.

This article was originally written for Inspire Magazine.

NLA article not to be reproduced.