Anna Bithrey discusses long COVID, assessing how the illness is classified and the key considerations for employees and employers.
According to statistics, an estimated one in 10 people who have contracted COVID-19 will also experience the symptoms of long COVID. This will usually persist more than 12 weeks after the initial infection.
Currently, there is very little known about why this condition only affects certain individuals. However, the severity of the symptoms has been well-documented. It seriously diminishes the quality of life of those suffering from it.
The nature of the illness means that symptoms vary on a daily basis. This can make working very difficult for dental professionals who are expected to interact and care for patients.
For practice owners, this is likely to be a significant concern. More than a million people reported to have experienced long COVID symptoms in the month leading up to March 2021. Guidance is therefore needed with regard to how the illness is classified. As well as what the key considerations are for employees and employers.
How do we classify a disability?
There is no universally accepted definition of long COVID. However, the NHS notes that sufferers often experience a broad range of symptoms for up to six months after initial infection. This includes chest and joint pain, extreme fatigue, shortness of breath, memory problems, depression, and a high temperature. Exact time frames are, as yet, unquantifiable given the unprecedented nature of the illness.
What is apparent is that long COVID will have a significant effect on an individual’s physical and mental wellbeing. Employers should be prepared for the fact that many employees experiencing symptoms are likely to be classed as disabled for the purpose of employment law.
A person with a ‘physical or mental impairment’ that has a ‘substantial’ and ‘long-term’ adverse effect on their ability to carry out day-to-day activities will be disabled under the Equality Act 2010.
It is already apparent that long COVID has the potential to be an impairment. One that has a substantial effect on an individual’s day-to-day activities.
On the other hand, ‘long-term’ refers to an impairment that has lasted. Or, will last for at least 12 months or is likely to come and go over time.
Not enough time has passed, or research undertaken, for it to be conclusively determined that long-COVID will regularly be a long-term impairment.
However, it appears that there will be individual cases where this is a clear possibility.
It therefore seems logical that those afflicted by long COVID be treated as if they are potentially disabled for employment law purposes. This will not be true in all cases, however. It will likely depend on the individual employee and their specific circumstances. Particularly the severity of their symptoms and the length of time they are likely to suffer with those symptoms.
If an employee is indeed deemed to be disabled, then it is the responsibility of the employer to ensure they act appropriately. They must make sure that the employee is not being placed at a disadvantage in the workplace.
If the employee is experiencing a disadvantage – perhaps they feel unable to work a full-time working week, or they are feeling easily exhausted – then it will be the responsibility of the employer to make reasonable adjustments to facilitate an employee’s return to work. Those found to not be doing so may be in breach of discrimination legislation. They could face costly claims at a employment tribunal.
However, there are still so many unknown factors surrounding long COVID and its long-term effects on the human body. Therefore, employers are unlikely to receive any conclusive answer about whether those suffering from long COVID are actually disabled. The Advisory, Conciliation and Arbitration Service (ACAS) is therefore recommending that employers shift their focus from whether long COVID is, in fact, a disability.
Instead they should concentrate on managing potential absences. Alternatively they should make reasonable adjustments. Therefore those with the condition will be able to continue in their work.
Although there is still limited information available on long COVID, it is clear that the illness can affect each individual very differently. Dental practice owners should prepare themselves for short and long-term absences. They should ensure that employees are treated no differently than if they were the result of any other chronic illness.
Your business should be ready and willing to support employees when they are fit to return to the workplace.
Of course, this support will depend on the severity of the symptoms they are experiencing. For example, it may be wise to offer regular breaks to those still suffering with the illness.
Before implementing these changes, it is crucial that you check with the employee in question. Ensure that they are happy with the proposed measures and that it also satisfies medical advice.
If there are any genuine concerns as to whether the employee has the capacity to return to work at all, it may be appropriate to begin a formal capability procedure, which could result in the termination of their employment. However, this should always be the last resort after all other options have been explored.
How employers manage an employee’s absence and maintain good employee relations despite potential ongoing absences is likely to differ depending on the circumstances. Employers will need to give consideration to additional actions they can take, including:
- Agreeing when and how contact should be made during the absence
- Deciding how details of the illness and the employee’s wellbeing are communicated to the wider team
- Ongoing reviews of the employee’s condition.
While the pandemic has forced practices to rethink how management teams interact with workers, it is important that the long COVID situation is handled with the same level of agility and common sense that businesses have now become accustomed to. Taking a pragmatic and fluid approach at this point could encourage a smoother return to the workplace, and result in better employee relationships overall.
Given the differing circumstances of every individual situation, if you are in any doubt about matters concerning your workforce, seek advice from an experienced employment law team, who can assess the situation for you, guide you on the appropriate steps to take and ensure you do not make a potentially costly error.