Fortunately, for the vast majority of those who contract COVID-19, the symptoms are relatively mild and recovery is fairly quick. Too many though are seriously affected and, as we all know, it can be fatal, especially for those in the high-risk groups.
There is also an ever-increasing number of individuals who suffer from what has been termed “long COVID,” where the impact is not only serious but lasts for a lot longer than in most cases.
Employees with long COVID are too ill to work and, as part of the usual sickness absence process, we are often asked if long COVID is a disability.
The answer depends on the employee being able to satisfy all of the elements of the legal definition set out in S.6 of the Equality Act 2010. This defines a person as having a disability if the individual has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to- day activities.
Is there an impairment? There is probably a physical impairment due to the effects of COVID-19.
Is there a substantial adverse effect on ability to carry out normal day-to-day activities? Substantial means something more than trivial or minor so this part is likely to satisfied.
But is there an adverse effect on the ability to carry out normal day-to-day activities? This is always a matter of fact for an Employment Tribunal to determine. As with many conditions, long COVID will affect different people in different ways and there is certainly a possibility that, for some, long COVID will be debilitating and there could well be a substantial adverse effect on their ability to carry out normal day to day activities.
However, the biggest hurdle for employees to overcome is the requirement that the substantial adverse effect be long-term. Long term means that the adverse effect must have lasted for 12 months or be likely to last for at least 12 months. At the moment, it is difficult to say whether long COVID will last for 12 months or longer.
So, as with most things COVID related this year, there is uncertainty as to whether long COVID is a disability. Whilst unlikely based on what we know right now, there is a possibility and employers need to bear this in mind when dealing with long COVID related sickness absence.
With one vaccine now approve and due to be rolled out in the next week or so, with other vaccines also waiting to be approved, by this time next year, we will hopefully not be asked this question at all.
If you are looking for advice on managing employees absences due to sickness, however caused, we’re here to help – get in touch.