As we emerge from a period that has seen records set for the numbers of people having contracted Covid-19, what are the longer-term implications for how this might affect the workforce? December 2021 statistics from the ONS show approximately 1.3 million people in the UK experiencing self-reported long Covid. That number will likely increase over coming months. Long Covid is still not fully understood; we imagine it frustrating and worrying for those suffering from it, but how do employers deal with this situation (on top of everything else they have had to deal with over the last two years)?

Long Covid is not like other illnesses that employers are used to dealing with. Anecdotal evidence from a TUC survey suggests that workers are struggling as employers unsure of what to do, are requiring staff to take unpaid time off, are asking questions bordering on disbelief and are triggering absence management processes. Employees are reporting discrimination, and some having to leave their jobs.

Could long Covid be a disability, giving sufferers legal protection from discrimination, or requiring employers to make reasonable adjustments? The Equality Act 2010 (EqA) defines disability as a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day to day activities. A tribunal would assess the facts case-by-case, but in our view, it could well be.

Brain fog (one symptom) is a mental impairment and shortness of breath is a physical impairment under guidance and case law. Taking the top four symptoms identified in an ONS survey in September 2021 (fatigue, shortness of breath, muscle ache and difficulty concentrating), it is easy to see that these could affect things most people do on a day-to-day basis. Is that a substantial effect? According to the EqA, substantial means more than trivial; a relatively low standard. The EqA says long term means 12 months, or likely to last 12 months. A TUC survey in September 2021 said 30% of those suffering from long Covid said they had experienced it for more than one year.

Practically speaking, employers need to collate as much information as possible from both the individual concerned and their healthcare professional to work out whether the definition is met and whether obligations are triggered.

The unknown can often lead to assuming the worst. Be informed. Do you understand what we know so far about long Covid; the symptoms, the effects etc? Are you keeping up to date with ACAS guidance and any other knowledge sharing platforms? With greater knowledge you can ask more relevant questions and make more informed decisions about moving forward.

Be flexible and innovative in what you are offering the employee – we have got quite good at that over the last two years. Where fatigue is the issue, this could be changing work patterns, being flexible about core hours and/or reducing hours. For breathlessness, that might mean seeing whether those parts which require exertion can be removed.

Communication with the sufferer is key as each case is unique and so it really will need a case-by-case approach. You will also be dealing with employees who are worried for their future, with no energy and concerned they may never feel normal again. Build trust and bring in additional healthcare advice where you need more information. Be thoughtful in your questioning so employees don’t feel they are not believed. As with any long-term sickness issue, try and avoid losing interest and withdrawing support, unintentionally, over time.

If you do get to a place where you are unable to support the individual be very careful with any dismissals and seek specific legal advice.

For more on this topic, listen to our podcast at https://www.anthonycollins.com/resources/webinars-and-podcasts/podcast-dealing-with-long-covid-in-the-workplace/