According to reports from early December 2021 an estimated 1.3 million people in the UK are experiencing long Covid, although those figures were compiled before the latest wave of Omicron cases.
The symptoms vary considerably and include fatigue, “brain fog”, anxiety, depression, breathing difficulties and cardiological issues. Sufferers also report that their symptoms often fluctuate. Speaking from personal experience (having experienced long Covid symptoms last year – from which I have thankfully now recovered), the condition can be debilitating and demoralising.
While the long-term effects of Covid can present significant personal difficulties, it can also affect employers. Severe symptoms may mean long-term sick leave and additional support requirements when employees are able to work.
Unfortunately a TUC report from last year highlighted that many employers are apparently not grasping the extent of this issue. According to the report, workers have experienced scepticism and a lack of empathy from their employers, amongst other poor treatment. Frontline and key workers appear to be disproportionately affected; many believe they caught the virus at work, yet the same workplace is not helping with the consequences of their subsequent long Covid. The report drew parallels with other energy impairments such as ME and Chronic Fatigue Syndrome, in relation to which workers have also experienced mistrust and a lack of support, and urged employers to do more.
Employers may need to educate their managers and HR about the effects of long Covid. Both Acas and CIPD offer guidance to help employers support staff experiencing symptoms. Speaking to the employee to understand what support is appropriate for them and maintaining communication is an important part of the process, particularly given the variable symptoms. Occupational health advice should also be sought where appropriate.
The legal consequences of employers not properly supporting long Covid sufferers has yet to be seen in the tribunals. The key employment law risk is around disability discrimination, but the challenge for many is how long their symptoms last to be able to argue they are protected. To meet the legal test a worker 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”. Long term means 12 months or likely to last 12 months.
Not every employee with long Covid will therefore meet this definition, although this may change if the condition continues. The TUC report mentioned above called for long Covid to be put on the list of “deemed disabilities” in the same way conditions such as cancer, HIV and multiple sclerosis are categorised in the Equality Act.
Discrimination is not the only legal risk. Where serious failures arise an employer may also expose themselves to claims of constructive dismissal. There may also be scope for personal injury claims being brought where an employer hasn’t met its duty to take reasonable care of the health and safety of its staff, albeit there may be difficulties in proving causation. Employers can mitigate against this risk by carrying out (and following) adequate risk assessments.
Other measures supportive employers may take include flexible working, adjustments to workload and increased breaks. Many larger employers have set up networks for staff to discuss and share their experiences, with Employee Assistance Programs offering specialist support for individuals.
It remains to be seen whether the Omicron wave will lead to a rise in long Covid cases, which would inevitably have a knock-on effect for employers. In the meantime, conscientious (and prudent) employers are well-advised to support affected employees.
Rowan Alexander is a senior associate at law firm CMS
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