Should Long COVID Be Treated as a Disability?

Supporting Staff Suffering from Long COVID

Long COVID is a condition we are still working to understand. The range of symptoms associated with the condition is broad and the way individual sufferers are affected can vary. There is no express legislative protection for people suffering from long COVID, and given that symptoms can vary and fluctuate, it is not clear that everyone suffering from long COVID will be disabled for equality law purposes.

The head of employment policy at the EHRC has now been reported as suggesting employers should treat staff suffering from long COVID as if they are disabled, "in order to avoid falling foul of equality law" (emphasis added). In the absence of official EHRC guidance, or indeed legislation on long COVID, our recommendation is to manage this risk by reverting to the statutory definition of a disability in order to assess individuals on a case by case basis.

What Is the Legal Definition of a Disability?

Under the Equality Act 2010, a person will be considered disabled if:

• they have a physical or mental impairment
• the impairment has an adverse effect on their ability to carry out normal day-to-day activities
• the adverse effect is substantial and long term (lasting 12 months or more)

How Can Organisations Determine Whether an Employee Meets the Definition?

It is not for the organisation to determine whether an individual is suffering from a disability for equality law purposes. Instead, medical advice should be sought, either from the employee's doctor or from occupational health. When obtaining medical evidence of an employee's condition, organisations should take the opportunity to ask detailed and precise questions that go to whether the individual satisfies each strand of the legal definition of disability. Advice can also be sought on what adjustments might help the individual return to, or remain at, work. It may also be possible to obtain advice on the individual's prognosis and timescales for recovery.

Considerations for Employers

It may well be the case that treating all long COVID cases as disabilities will provide the most protection from disability discrimination claims. However, from a practical perspective, treating all long COVID sufferers as disabled will trigger the duty on employers to make reasonable adjustments. This is something employers will want to consider carefully, particularly if the medical advice is that the range of symptoms presenting in an individual case does not meet the definition of disability.

For more information on long COVID as a disability, please contact Ellen Netto in our Employment Law team on  07384 812798 or complete the form below.