Covid employer guidance updates | March 2022

Is long Covid-19 a disability?

The Office for National Statistics estimates that 1.3 million people in the UK have "long Covid-19". There are currently no clear legal protections for people with long Covid-19 and the condition is not yet fully understood. While symptoms of long Covid-19 vary, the Equality and Human Rights Commission ("EHRC") has suggested that businesses should treat employees with long Covid-19 as if they have a disability which falls within the Equality Act 2010 ("EqA 2010"). Further, the TUC and other bodies have asked the government to classify the condition as a disability – albeit the EHRC has indicated that the varying nature of the condition and the short amount of time it has been a condition may be a barrier to the government doing this.

Even if the government does not classify long Covid-19 as a disability, businesses should still be mindful that employees with long Covid-19 may meet the definition of disability within EqA 2010, i.e. 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. If employees with long Covid-19 meet the disability definition, there will be an obligation on the business to make reasonable adjustments to ensure that the employee is not at a substantial disadvantage due to their disability. Occupational Health advice and advice from the employee's GP may assist in identifying what adjustments are required.

If you'd like more information and, in case you missed it, back in May last year, our team, in conjunction with Liberty HR Recruitment, hosted a panel discussion which focused on what employers need to know about long Covid-19. You can catch up here

Living with Covid – implications for business

Since 24 February 2022, the legal requirement in England to self-isolate following a positive Covid-19 test dropped away. However, people are still advised to stay at home and avoid contact for 5 full days and the legal requirement for employers to provide a reasonably safe place of work remains. The government intends to replace the current guidance for "Working Safely" in April as part of the new strategy for living with Covid-19 and from 1 April, employers will no longer be obliged to complete a Covid-19 specific assessment.

However, as guidance is replacing legal obligations, there is an increasing burden on employers to determine their own approach to Covid-19 in the workplace and businesses may decide to put in place policies such as:

  • Requiring employees to stay home if they have tested positive for Covid-19 (and work if their role enables them too and they are well enough).
  • Requiring employees to work from home or stay at home if someone in their household has tested positive for Covid-19.

There are a number of considerations for employers when deciding what policies to implement, including whether employees who are required to stay at home, but who are well enough to work, will receive full pay. Asking employees who are fit and able to work to stay away and not work would seem to be akin to medical suspension entitling employees to full pay. It may be wise for businesses to wait until the government guidance is published before making any strategic decisions for 'Living with Covid-19'.

If you are thinking about your workplace strategy for 'Living with Covid-19', please do contact a member of the Employment team below:

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