As you are likely aware, the amount of time taken to recover from COVID-19 differs between individuals. Long COVID, also known as post-COVID-19 syndrome or long-tail COVID, is indicated by individuals experiencing symptoms for weeks or months after their initial infection. Long COVID can affect anyone and not just those who were seriously unwell when they first caught COVID-19. Some common symptoms include extreme tiredness, feeling short of breath, loss of taste and smell, and muscle aches. The effects and causes of long COVID are still being studied.
You should ensure your organisation has policies and procedures in place to manage and support staff who are suffering from long COVID, and to mitigate against discrimination risks. We discuss how to do this below.
Sickness and absence from work due to long COVID
Long COVID can affect a person’s ability to work and may cause them to take sick leave. Your policies on sickness absence and sick pay should continue to apply to those who are off work due to long COVID. For further guidance on sick pay and sickness absence, see Sickness absence.
You should be aware of how unpredictable the symptoms of long COVID can be. On some days, the employee may seem well, but their symptoms may flare up without warning. You can provide support for employees who are off sick by:
- having an agreement on how and when to make contact during any sickness absence;
- making sure the employee’s work is covered and delegated appropriately while they’re off; and
- talking about ways to support and facilitate their return to work.
Note that if an employee’s illness constitutes a disability, you’re legally required to make reasonable adjustments to accommodate them. We discuss this further below.
Disability and discrimination: is long COVID a disability?
A disability is a physical or mental impairment that has a long term and substantial adverse effect on a staff member’s ability to carry out normal day-to-day activities. ‘Long term’ means that the impairment will affect them for 12 months or longer. ‘Substantial adverse effect’ means that the impairment has more than just a minor impact on their life or how they are able to do certain things. This means long COVID could be regarded as a disability, depending on how the person’s life and daily activities will be affected by it.
You can seek medical advice to help to determine whether your employee is disabled. However, you can’t simply rubber-stamp the adviser’s opinion and will need to make your own judgment on whether your employee is disabled, taking into account all the facts and advice available. Given that long COVID is still a new condition, which is not yet fully understood, it would be prudent to focus on providing reasonable adjustments to staff rather than trying to figure out if their condition is a disability or not.
When dealing with employees with long COVID, you must be aware of the risk of discriminating against your staff, and take extra care when considering long COVID. Discrimination occurs when an employer is treated less favourably due to a protected characteristic. It has been found that long COVID affects older people, ethnic minorities and women more severely. Therefore, you must be careful and avoid discriminating by age, race or sex, as well as by disability. For more information on conditions that are commonly regarded as disabilities, see List of common disabilities.
How can I support staff who are suffering from long COVID?
Employees who suffer from long COVID need time to plan and prioritise their return to work. It may help if they gradually increase their activity to assess their own comfort and manage the expectations of others. The longer they are on sick leave, the harder it is likely to be for them to go back to work, which means that doing the right kind of work at the right pace is crucial for the employee’s mental and physical health. When the employee feels able to go back to work, you should provide appropriate support by obtaining an occupational health assessment, if necessary, and reviewing or updating your risk assessment. You may consider a phased return to work by making adjustments to work conditions or hours, and you should also check whether your employee wants to let their colleagues know about their condition.
Reasonable adjustments should be practical and affordable, and you don’t have to take every possible step. For example, adjustments can include making changes to the employee’s workstation, allowing more flexible working or hours, providing information and resources in a more accessible format, and adjusting the employee’s responsibilities to reduce stress and accommodate their needs for the day.
Dismissing staff on frequent sick leave and/or with disabilities
You are permitted to dismiss a staff member who is frequently off work due to illness, as long as you have taken certain steps first and follow a fair process if you do take the decision to dismiss. Note that you need to be particularly careful if the employee has (or may have) a disability. See our Q&A for further guidance.
If you genuinely cannot put reasonable adjustments in place to deal with a staff member’s illness or disability, or if those you have tried are not working, you may then take the decision to dismiss the staff member. See our Q&A for more guidance on steps to take.
Depending on the circumstances, be aware that damages can be very high for discrimination claims. For example, if your disciplinary procedure results in a dismissal causing an employee to lose their full pension rights, you may have to compensate them for their entire loss. It is therefore crucial that you handle a dismissal involving a disabled employee carefully; you should seek legal advice if you are unsure. For access to a specialist lawyer in a few simple steps, you can use our Ask a Lawyer service.
Marion joined Sparqa Legal as a Senior Legal Editor in 2018. She previously worked as a corporate/commercial lawyer for five years at one of New Zealand’s leading law firms, Kensington Swan (now Dentons Kensington Swan), and as an in-house legal consultant for a UK tech company. Marion regularly writes for Sparqa’s blog, contributing across its commercial, IP and health and safety law content.