Shalina Crossley Angie Creery Amy Cooper December 23 2020 What implication does 'long COVID' have for employers? Lewis Silkin LLP | Employment & Immigration - United Kingdom Shalina Crossley, Angie Creery, Amy Cooper Employment & Immigration IntroductionWhat is long COVID?Is long COVID a disability under the Equality Act?How are ETs likely to approach long COVID cases?Practical problems for employersWhat should employers be doing now?IntroductionThis article explores the growing phenomenon of 'long COVID' – the continuation of serious symptoms and effects for a significant period after a person's initial COVID-19 infection and illness. Is disability discrimination law likely to apply in this context and how should employers approach this issue?COVID-19 was first identified in China towards the end of 2019 and by the end of 2020 it has been contracted by approximately 60 million people worldwide leading to 1.4 million deaths. While many who have experienced COVID-19 have fully recovered, increasing numbers of people who have overcome the immediate symptoms are reporting more prolonged effects.Fatigue, pain, headaches, breathing difficulties, muscle weakness, lasting fever, anxiety and stress are some of the reported long-term adverse effects of COVID-19, according to individuals suffering from what is coming to be known as 'long COVID' – also sometimes referred to as 'post-COVID syndrome' or 'long-tail COVID'. In particular, there have been numerous accounts of young, active, healthy people suffering from post-COVID-19 symptoms, which goes some way to dispelling the popular myth that only the elderly and those with underlying health conditions will be severely affected if they contract COVID-19.People who suffer from long-term health conditions may be 'disabled' in law and so protected from discrimination under the Equality Act (EqA) 2010. This article considers whether long COVID could amount to a disability for these purposes and the potential consequences for employers more generally.What is long COVID?There is a lack of medical clarity about what long COVID is, its effects and how long it might last. Some of the post-COVID-19 symptoms that people have been suffering are mentioned above. According to the National Health Service, "increasing medical evidence and patient testimony is showing that a small but significant minority of people who contract Covid-19 cannot shake off the effects of the virus months after initially falling ill".A new study by Oxford University researchers suggests that COVID-19 could be causing lung abnormalities still detectable more than three months after patients have been infected. However, the symptoms that many people describe experiencing after initially 'recovering' from COVID-19 are analogous to post-viral fatigue or similar to those suffered as a result of myalgic encephalomyelitis (ME) or chronic fatigue syndrome (CFS).For employment law purposes, there are significant challenges for employers in not knowing how long the effects of long COVID are likely to last. There is growing anecdotal evidence in particular about the similarities between long COVID and ME, a condition which tends to have symptoms that come and go (a factor recognised in case law – see below). There can be difficulties and frustrations on both sides of employment relationships in situations where individuals can be fit to work one day but debilitated by their condition the next at short notice.Is long COVID a disability under the Equality Act?People have a disability under the EqA 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".Some conditions are 'deemed' disabilities, which means that individuals automatically qualify if they suffer from the condition (eg, cancer, HIV infection and multiple sclerosis). In other cases, people must show that they satisfy the definition set out above in order to be protected from discrimination because of their condition.Breaking down the definition, long-COVID sufferers would most likely be able to show that they have a physical impairment which adversely affects their ability to carry out normal day-to-day activities. Whether they are then able to establish that the effect is 'substantial' will depend on the severity of their symptoms. Reports in the media including of individuals being unable to get out of bed for days or walk any significant distance provide examples that would probably meet this hurdle.The final part of the test is whether the adverse effect of the impairment is 'long term', which is defined as:having lasted at least 12 months;being likely to last at least 12 months; orbeing likely to last for the rest of the person's life.This is a question that is going to be especially difficult to answer given that COVID-19 has only been present in the United Kingdom since the beginning of 2020. While there is currently little medical clarity as to how long the physical effects of COVID-19 are likely to last, the assessment is ultimately a legal determination for the employment tribunals (ETs) to make on the specific facts of the case rather than a medical issue.Long-COVID sufferers may have a pre-existing condition (eg, diabetes or asthma). Even if an individual's post-COVID-19 condition is found not to amount a disability itself, the combined effect with their pre-existing condition may result in an overall substantial and long-term adverse effect such that it meets the EqA test for disability.How are ETs likely to approach long COVID cases?There have been no decided cases on whether long COVID amounts to a disability within the meaning of the EqA. However, as the effects are apparently analogous to those of post-viral fatigue, ME and CFS, it is instructive to look at previous case law concerning those conditions for guidance. One example is the 2009 Employment Appeal Tribunal (EAT) decision in Chief Constable of Dumfries & Galloway Constabulary v Adams, in which the EAT upheld an ET's decision that an employee who suffered from ME was disabled. While the effects of the employee's condition waxed and waned, it was consistent and persistent and so met the criteria of being 'substantial' and 'long term'.The position is complicated by the fact that the ETs must judge the likelihood of a condition lasting 12 months or longer as it was at the time of the alleged discrimination, as opposed to whether the condition did in fact last 12 months or longer. (See the Court of Appeal's judgment in McDougall v Richmond Adult Community College.) This is a difficult analysis where more about the impact and its long-term effects are being learnt as time goes on.Practical problems for employersEmployers with staff who are suffering from long COVID should be mindful of the possibility that they may have a disability, depending on the severity and duration of the effects. This means that treating a long-COVID sufferer less favourably because they have long COVID or, for example, have high levels of sickness absence or are unable to fully fulfil the requirements of their role could amount to direct disability discrimination or discrimination arising from a disability.Perhaps more significantly, the EqA places a positive obligation on employers to consider what, if any, adjustments can reasonably be made to alleviate any disadvantage suffered by disabled individuals in the workplace. For employees with long COVID, potential adjustments might, for instance, include adjusting working hours or allowing individuals to continue working from home after lockdown.Problematic issues are likely to arise in the context of absence management. Long-COVID sufferers may have long periods of sickness absence and will need to be treated in the same way as other employees on long-term sickness absence, including in terms of their entitlement to company (where applicable) and statutory sick pay. To provide support to staff who become incapacitated during their employment, many employers take out permanent health insurance (PHI) or income protection insurance. Under such policies, employers receive sums from insurers which they pass on to employees so that they receive full or partial salary while they are unable to work and after exhausting their entitlement to sick pay. For employers to make a claim under the policy, employees must meet certain eligibility criteria, which may include being disabled within the meaning of the EqA.Given the uncertainty over whether long-COVID sufferers will meet the test for disability, will employers be able to make PHI claims on behalf of such individuals? Most PHI schemes stipulate a deferment period, so benefits are not payable until employees have been unable to work for a specified period – this may be anywhere from eight weeks to one year. Many long-COVID sufferers may not yet have reached the end of the relevant deferment period but, the longer their symptoms continue, the closer they may be to entitlement under their employer's PHI policy.There are signs that insurers are already beginning to accept these types of claim. Aviva's COVID-19 support page states, in reference to group income protection cover, that "employees with the Covid-19 infection who are unable to work due to incapacity past the deferred period on their policy are covered, subject to the terms and conditions of their policy". In terms of individual critical insurance policies (which will normally pay out only in respect of conditions specifically covered by the policy), Aviva states that:[a]lthough Covid-19 isn't a covered condition on critical illness policies, if complications as a result of the virus lead to other insured criteria being met, the claim would be paid subject to the terms and conditions of the specific policy.Legal & General (L&G) has also issued a similar statement regarding critical illness cover, suggesting that if long-COVID sufferers are diagnosed with a covered condition (possibly including post-viral fatigue and CFS), they may be able to bring a successful critical illness claim. L&G has also launched a new long-COVID intervention package, which includes rehabilitation time and eight hours of therapy assessment for long-COVID sufferers, who can be referred by their employer after an absence of four to six weeks.Aside from disability discrimination, potential claims could arise in relation to other protected characteristics. King's College London researchers have identified several risk factors for the development of long COVID, including being of an older age, being of a heavier weight, suffering from asthma and being female. The study found, among other things, that women under 50 years of age are 50% more likely to suffer from long COVID than men in the same age group (although it is unclear why). These findings suggest that employers must take care to avoid allegations of indirect sex or age discrimination when approaching the issue of long COVID in their workforce. There is also data indicating a disproportionate impact of COVID-19 on Black, Asian and minority ethnic groups, which raises the prospect of indirect race discrimination allegations against employers.What should employers be doing now?Pending further evidence and findings about the long-term effects of COVID-19, there are various practical steps that employers can take to support employees who are suffering with long COVID, including:engaging with employees experiencing long-COVID symptoms and considering whether any reasonable adjustments are possible to alleviate the problems that they are experiencing. These could include:allowing phased returns to work (following sickness absence);making adjustments to working hours and the type of work done;allowing continued homeworking; andproviding access to occupational health and employee assistance programmes;proactively managing absence. Employers could explore the reasons for any absences and, where there is a pattern of intermittent sickness absence or long-term sickness absences, refer employees to occupational health to gain a better understanding of the prognosis. Employers should document any detrimental impact on the business caused by the absence;educating line managers about the importance of applying policies and procedures in a non-discriminatory way;considering furloughing employees who are off sick with long COVID; however, this must be managed carefully. Government guidance states that the furlough scheme is not intended to be used for short-term sickness absence, although employers are nonetheless able to furlough employees for business reasons when they are off sick if they wish to do so;(1) andspeaking to insurance providers to find out what approach they are taking towards long COVID.For further information on this topic please contact Shalina Crossley, Angie Creery or Amy Cooper at Lewis Silkin by telephone (+44 20 7074 8000) or email ([email protected], [email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.Endnotes(1) For further information please see "Furloughing employees - FAQs for employers on the coronavirus job retention scheme".