Will ‘long COVID’ be classed as a disability under the Equality Act 2010?

A recent Office for National Statistics report suggested that over the four-week period ending 06 March 2021, an estimated 1.1m people in the UK reported experiencing COVID symptoms that had lasted more than four weeks after the first suspected COVID-19 episode.

Whilst there is no universally recognised medical definition or formally diagnosed condition for those who suffer from lasting symptoms of COVID-19, the effects are commonly referred to as ‘long COVID’.

Patients suffering from long COVID have reported reduced lung capacity, breathlessness, fatigue/exhaustion, insomnia and a lack of concentration. Some have also reported poor mental health as a result of having the virus, with conditions such as depression, anxiety and even PTSD being recognised as consequences of the virus.

As the UK returns to some level of normality and more people return to work, employers will need to think about how they handle employees who are potentially suffering from long COVID. This will allow them to support employees who are dealing with a potentially complex set of symptoms. There is also a risk that long COVID may be defined as a disability under the Equality Act 2010 (EqA) and, as a result, should employers fail to handle matters appropriately, they may find themselves facing a disability discrimination claim in the Employment Tribunal.

Is long COVID potentially a disability under the EqA?

Some medical conditions are automatically deemed as a disability under the EqA (for example, cancer, HIV and multiple sclerosis). long COVID, however, is not a prescribed disability and so employers will need to consider whether an employee reporting long COVID symptoms satisfies the legal test for disability under section 6 of the EqA.

Section 6 confirms that a person has a disability 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.

It is often much easier for an employer to assess whether a person is disabled for the purposes of the EqA by breaking down that test as follows.

Does the employee have a physical or mental impairment?

It is likely that a person suffering from long COVID will be able to establish that they have a physical or mental impairment. This will either be one, or a combination of, the symptoms they are suffering from.

Does that impairment affect a person’s ability to carry out normal day-to-day activities?

EqA guidance states that ‘normal’ day-to-day activities are things that people do on a regular or daily basis including, for example, shopping, reading, writing, social activities, household tasks and walking or travelling by various forms of transport. Employers will need to establish whether an employee’s ability to carry out such tasks has been affected by long COVID.

ONS statistics suggest that in March 2021, self-reported long COVID symptoms were adversely affecting the day-to-day activities of 674k  of those 1.1m people who reported long COVID symptoms.

Is the effect substantial?

Again, the guidance to the EqA provides some clarity around whether the effect of the impairment on a person’s ability to carry out normal day-to-day activities is substantial. The guidance states that the effect must be more than minor or trivial and this will need to be looked at on a case-by-case basis.

However, reports suggest that some long COVID sufferers have seriously decreased lung capacity, to the extent that they struggle to walk much further than for a few minutes which seriously limits their ability to carry out day-to-day activities. This is reflected in the ONS’s report from March 2021 which suggested that, out of the 1.1m people reporting suffering long COVID symptoms, some 196k surveyed said their ability to carry out normal day-to-day activities had been limited a lot. This would suggest that there is a real risk of long COVID having a substantial effect on a person’s ability to carry out normal day-to-day activities.

Is the effect long-term?

An impairment will have a long-term effect if it has lasted for 12 months or more, or it is likely to last for 12 months or more. At present, it may be difficult for employees to establish that the effects of long COVID have lasted the required 12 months, given the virus is relatively new. There is also currently not enough evidence to assess how likely it is that the effects will last for 12 months or longer. In light of this, employers will need to carefully consider each case individually and take medical advice if required. As we learn more about the virus, however, and as time passes, there is a chance that employees will be able to establish that the effect of the condition or symptoms is long-term.

What should employers do where an employee reports long COVID symptoms?

The starting point for employers dealing with employees who may be suffering from long COVID symptoms is that they should be mindful that it may well be classified as a disability under the Equality Act. They should, therefore, be careful not to discriminate against employees who report long COVID symptoms, either directly or indirectly.

The first step they should take when an employee reports long COVID symptoms is to establish the effect that these symptoms are having on the individual and how long they have been suffering from these symptoms. This will help employers to establish whether the individual is likely to be classed as disabled, taking into account the legal test set out above.

Where the employer believes or has reason to believe, the employee would be disabled they should:

1. Where the employee returns to work after having been unwell with COVID-19 or long COVID, ensure that a return to work interview is completed to establish further information.
2. Consider whether any additional risk assessment needs to be carried out, so as to take into account the effects of long COVID on individual employees.
3. Consider whether they should obtain medical advice on the effects of the employee’s condition, either through a referral to Occupational Health, or by seeking a report from the employee’s GP directly (ensuring they are compliant with the provisions of the Access to Medical Records Act).
4. Consider whether any reasonable adjustments need to be made to help the employee overcome any substantial disadvantage they may face as a result of the effects of long COVID. Examples of reasonable adjustments may include:a) Adjusting trigger points in sickness absence procedures to reflect the fact that the employee may need additional time off work;b) Allowing the employee to work flexibly (i.e. from home in order to reduce travel) or adapting working patterns to accommodate employees who suffer with fatigue or exhaustion as a result of long COVID symptoms;c) Making amendments to workstations to take into account any joint or muscle pains the employee may be suffering from as a result of long COVID.
5. Ensure employees are aware of any support or assistance that they may be able to access through any employee assistance programmes or private medical cover offered by the employer.

Crucial to all the above steps is effective communication between the employer and the employee. This will help the employer to establish precisely what action is needed and will prevent employees from feeling they are being poorly treated because of their condition, which should reduce the risk of workplace disputes arising.

As research into the effects of COVID-19 develops, employers will be clearer on whether long COVID is a medical condition capable of being defined as a disability under the EqA. For now, however, employers should understand that there is a good chance the lasting effects of COVID-19 may well constitute a disability and they should act accordingly.