We discussed the effects of long Covid with sufferers in order to obtain a better understanding of what long Covid is and individual experiences. We were also joined by Dr David Strain who is heavily involved in the Covid-19 response team, playing a leading role in the BMA's Covid-19 response.
You can access the recording here, but for those wishing for a summary, we outline below some key takeaway points and practical guidance as to how you can support employees and the potential legal implications.
What is long Covid?
Long Covid is a long-term condition which leaves those who have had Covid-19 with long-term effects on their health with varying symptoms, including but not limited to:
• problems with memory and concentration (brain fog)
• muscle and joint pain, muscular weakness
• anxiety, low mood, depression
• chest pain or tightness, heart palpitations
• pins and needles
• shortness of breath
• diarrhoea, nausea, vomiting, stomach aches, loss of appetite
• high temperature, cough, headaches, sore throat, loss of sense of smell or taste
• tinnitus, earaches
Whilst some people thankfully appear to recover over a period of time, others find themselves trying to manage the condition in the much longer term with the effects of long Covid impacting on their day-to-day lives and continuing to do so for the foreseeable future.
As this is a brand-new disease with further information still being uncovered, there are many unknowns in terms of treatment and as its very nature is unpredictable it can consequently be difficult to manage in the workplace.
Dr David Strain explains that four basic syndromes have been established:
- Post Intensive Care Syndrome – affecting those people admitted to ICU
- Ongoing damage to the lungs and heart – people who are still dealing with cardiac issues (e.g. tight chest and/or palpitations)
- Post-viral fatigue – very much aligned to Myalgic Encephalomyelitis/Chronic Fatigue Syndrome (ME/CFS)
- Continued COVID-19 syndromes
Those in the third category are arguably the most difficult to manage as they do not follow a certain pathway/pattern. An individual may wake up one day and manage a whole day of work but the next day struggle to get through a few hours. The point they hit the wall will vary greatly from day-to-day and person to person.
One of the main issues with this disease is that no two people are presenting the same symptoms. However, it is beginning to show that common symptoms are clustering into certain groups:
- cardiac cluster - chest pain and shortness of breath
- fatigue cluster - brain fog and fatigue
Someone with symptoms that come within the cardiac cluster may manage well if supported to a role that is desk based. Whereas someone with symptoms that come within the fatigue cluster may struggle even if desk based due to the fact that the fatigue will still affect them even when sat down.
On a more positive note, according to a recent survey, the Covid-19 vaccines tend to improve the symptoms of long Covid in the majority of cases. There is therefore hope that long Covid will be treatable for all sufferers in the future.
The Legal Part
What does this mean for employers?
The definition of disability under the Equality Act is different to how we define disability in ordinary everyday language. Under the legislation a person has a disability if:
- they have 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.
Substantial is something that is more than minor or trivial – you should therefore not be taking account of how an employee can mitigate their symptoms to appear “normal” (e.g. spending the weekend in bed to recover from the working week).
Long-term means anything that has lasted at least 12 months or likely to last as long.
Long Covid sufferers would most likely be able to show that they have a physical impairment which adversely impacts their ability to carry out normal day-to-day activities. Whether they are then able to establish that the effect is “substantial” will depend on the severity of their symptoms.
Given it’s now unbelievably 16 months since the first Covid case was identified in the UK, we are seeing people who have had long Covid for 12 months or more. The assessment is therefore ultimately going to be a legal determination for an Employment Tribunal to make on the specific facts of the case.
It is particularly important in respect of long Covid to be aware that the condition doesn’t necessarily need to be clinically recognised or diagnosed. The emphasis is on the impact of the symptoms rather than the label or diagnosis that has been attached to them.
If someone is disabled in the workplace, there is an obligation to make reasonable adjustments.
Where that duty arises, the employer must effectively treat the disabled person more favourably than others in an attempt to reduce or remove that individual’s disadvantage.
Note that the wording is that the adjustment must be reasonable. This means that an employer doesn’t need to do absolutely everything in its power to alleviate the disadvantage. Whether an adjustment is reasonable or not is an objective test taking into account the circumstances of the case and will therefore be very fact sensitive.
Those at most risk of long Covid are currently those of working age which is therefore likely to have a significant effect on the working population and require employers to address the issues head on to ensure not only that the employee is supported, but also that the business is not negatively affected, either financially or reputationally.
The Practical Part
Allow the individuals to take their time returning to work. Don’t apply pressure to return early or get back to “normal” hours too quickly. Long Covid is difficult to predict in terms of individual effect, sometimes an individual can appear to be progressing well before relapsing with their recovery. A gradual return is likely to cause less long-term disruption.
The NHS’ Covid Recovery Plan recommends the “3 Ps”. That the employee should:
- Pace themselves so they don’t push themselves too hard, and make sure they have plenty of rest
- Plan their days so their most tiring activities are spread out across the week; and
- Prioritise – think about what they need to do and what can be put off
Be proactive in managing any absence, agree with the employee about how and when contact will be made and schedule regular check-in meetings.
It is worth bearing in mind that the usual rules for sickness absence and sick pay apply if an employee cannot work due to long Covid.
Be open, sympathetic and engage with employees experiencing symptoms.
Keep the discussion open and encourage honesty so you can appropriately support individuals.
Consider and discus whether any reasonable adjustments are possible to alleviate the problems the individual is experiencing. For example:
- Reduced hours
- Phased return
- Continued homeworking
- Flexible hours
- Longer lunch breaks
- Adapted physical workspaces
For those already working from home, offer the freedom for them to work from their own clock when necessary and cut down on the more exhausting tasks, such as meetings.
Dr Strain uses the helpful analogy of a smart phone battery when thinking about long Covid. If you let the battery go completely flat recharging it takes even longer. It is therefore better not to let the battery run down to empty. Instead, recharge regularly to ‘top up’. If you do so, the battery will last much longer. Bear this in mind when considering how you can best support employees.
Raise awareness (where appropriate) within the business and educate managers and others how to support employees, spot any warning signs (e.g. repeated periods of absence) and about the importance of applying policies and procedures in a non-discriminatory way.
Speak to your Permanent Health Insurance provider to understand their approach and access the ACAS guidance for employers and workers suffering with the effects of long Covid.
When managing employees with long Covid, have in mind your Long Term Sickness Absence procedure and Capability procedure in the same way as for any employee with long term health issues.
The key is not to adopt a blanket approach to employees who have or are suspected of having long Covid but instead deal with each employee on a case-by-case basis.
If you would like more information on how long Covid issues might be affecting employees in your organisation, please get in touch with the team below.