Long Covid – the implications for FE employers

@Helen_IMHRplus from @IrwinMitchell discusses the #LongCovid implications for FE Employers 

Danny Altmann, a professor of immunology at Imperial College London, has said the picture is concerning. “These figures are somewhat more worrying even than many had feared. If one extrapolates to global Covid-19 cases, this means there are 5-10 million people out there with a long-term condition for which we have no current explanation and no treatment plan,” he said, adding there was no information on how long the condition lasts.

So, what must employers in the FE sector do?

What are the symptoms of long covid?

At the outset of the pandamic, the general public were told that most people who contract Covid would only suffer from mild flu like symptoms and would usually fully recover after a few days’ rest. Whilst most people do fully recover within 12 weeks, others have severe reactions to the disease (and need to be treated in hospital) or suffer from debilitating long-term problems, such as chronic fatigue. People who had mild symptoms at first can still have long-term problems.

According to the NHS, common long Covid symptoms include:

• extreme tiredness (fatigue)
• shortness of breath
• chest pain or tightness
• problems with memory and concentration (“brain fog”)
• difficulty sleeping (insomnia)
• heart palpitations
• dizziness
• pins and needles
• joint pain
• depression and anxiety
• tinnitus, earaches
• feeling sick, diarrhoea, stomach aches, loss of appetite
• a high temperature, cough, headaches, sore throat, changes to sense of smell or taste
• rashes

Infection rates are still extremely high and current data shows that in the last week of January around 1.2 million people had tested positive for coronavirus in the UK. In January Chris Whitty said that around 1 in 50 people have Covid, and that in some parts of the country the rate was as high as 1 in 20. 

The vaccination process has started but it will take some time before it’s rolled out to most of the working population. In the meantime, people will continue to get sick and employers need to understand how to deal with members of staff with ongoing problems caused by Covid. 

Employers are used to dealing with long term absences but find it much more difficult to deal with individuals who can be fit for work one day and completely debilitated the next day.  

Is long Covid a disability?

Anyone that has a disability is protected from discrimination. Whether someone is disabled is a matter for the Tribunal and so an employer is in a difficult position of having to take a view on whether to treat someone as a disabled person when it may not be clear. Occupational health can help to give a view, but this is not determinative. Legal advice can also assist.

Disability is any physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. Many of the symptoms of long Covid are likely to meet this description. 

An impairment will be regarded as ‘long-term’ if it has already lasted, or is likely to last, at least 12 months. There’s very little medical clarity about how long the physical effects of Covid are likely to last and, ultimately, this question would have to be answered by an Employment Tribunal on the specific facts. But, it’s probably safer to assume that anyone who is still suffering from the effects of Covid months after they were infected is likely to be able to demonstrate that it’s long term.

Reasonable adjustments

It follows that if you employ someone with long Covid who is ‘disabled’, you will need to make reasonable adjustments to help them remain in work or return to work. This might include adjusting someone’s hours, giving them the opportunity to work flexibly or limiting what they do either on a temporary or permanent basis.

You’ll also need to treat disability related absences with care. You are entitled to manage ill health and absence and a disabled employee can’t expect to be removed entirely from the scope of your absence management policy. Some policies already include provision to offset disadvantage to people with disabilities. If yours doesn’t you should consider what adjustments you can make which might, for example, include extending the trigger points and allowing a higher level of absence before you start taking action. 

Even if adjustments are made, the level of absence may reach the point where you can reasonably dismiss on the grounds of capability. However, you would need to obtain up to date medical evidence first, discuss this with the employee and warn them that they may be dismissed. Take advice if you’re not sure.

Furlough

You may be able furlough employees who are off sick with long Covid – but not if they are intermittently absent.  

The government has said that the scheme should not to be used for those people who are ill for a short period and they can only be furloughed if you are furloughing your entire workforce, or the part of it they work in. More information about this is available in our complete guide to the furlough scheme.

Helen Dyke is a Senior Associate Solicitor in the Employment Team at Irwin Mitchell