Could long COVID be classified as a disability?

It is now well over a year since the first case of COVID-19 was diagnosed in the UK on 29 January 2020. Among the many issues thrown up by the COVID-19 pandemic are questions relating to how employers should treat those employees affected by it. Not least the looming long-term consequences around what is being called ‘long COVID’, its medical impact, and whether it is likely to be classified as a disability under the Equality Act 2010.

How many UK employees are estimated to have long COVID?

According to a study by King’s College London, most people with COVID-19 reported being back to normal in eleven days or less and about one in seven had COVID-19 symptoms lasting for at least four weeks. Approximately one in twenty stayed ill for eight weeks with one in fifty suffering for longer than twelve weeks.

The researchers stressed that these results were conservative estimates which may underestimate the extent of long COVID.  According to the same study, around 300,000 people in the UK could experience long COVID in the future.

Figures so far suggest that long COVID affects around ten percent of working-age adults and women are fifty percent more likely to suffer from it than men.  The All-Party Parliamentary Group (APPG) on Coronavirus is calling for long COVID to be officially recognised as an occupational disease.

If long COVID is classified as a disability for the purposes of the Equality Act 2010, which seems possible, this raises serious issues surrounding employers’ obligations in making reasonable adjustments.

On what basis could long COVID be classified as a disability in the UK?

Disability under the Equality Act 2010 is defined as a ‘physical or mental impairment’ that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.

It is easy to see, therefore, how the symptoms of long COVID are likely to be classified as a physical impairment. The symptoms range from loss of taste and smell to dizziness, anxiety, respiratory difficulties, blood clots, and even organ damage. The symptoms can also include excessive fatigue, insomnia, muscle pain, intermittent fevers, and an inability to concentrate. Other symptoms include cognitive issues such as ‘brain fog’, hearing impairment, and mental health problems.

The next key question around the classification of long COVID as a legal disability would be whether the negative effect is ‘substantial’ and ‘long-term’.

‘Substantial’ is determined on a case by case basis but has to be ‘more than minor or trivial’. While some of the symptoms, such as loss of smell or taste, would probably not be regarded as such, other more serious physical symptoms would almost certainly be so. They could lead to time off and therefore trigger issues for the employer. Equally, a mental health condition could also be regarded as substantial.

‘Long-term’ means it has lasted or is likely to last for at least twelve months or more. It is too early to say whether long COVID lasts as long as this. However, it is definitely something that employers should be aware of.

An impairment is also considered to be long-term if the effects are recurring or fluctuating. Therefore, the employer and the manager need to have a really sensitive conversation with someone who has been diagnosed with long COVID to understand how the illness affects the employee personally, and the impact it has on work performance.

What would the consequences be for employers?

If individuals with long COVID are ultimately classified as disabled under the Equality Act 2010, employers will risk claims for discrimination if they do not make reasonable adjustments and ensure that employees with long COVID are treated in a non-discriminatory way. As ever, there is a balancing act between the investment of time and costs, versus the risk of potential claims.

Feel free to contact our solicitors for more information or advice regarding the implications of long COVID in your workplace.