Is long COVID likely to be viewed as a disability? Will employers be obliged to make adjustments for employees suffering from this?

Posted in : Seamus Says - Employment Law Discussion on 7 May 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Coronavirus; Long-covid; Disability Discrimination; Reasonable Adjustments

Scott: "Is long COVID likely to be viewed as a disability, and will employers be obligated to make adjustments for employees who suffer from this?"

Keep in mind that we had about 40% of the people here who have employees who have long COVID symptoms.

Seamus: Well, this was a question, Scott, that had come in prior to our webinar, and you had helpfully sent me through some press clippings and some things like that in relation to long COVID.

I've been dealing with cases and work here for employers where there have been issues arising with someone that has been off on long-term sick leave. There are particularly frustrations with employees whereby the person seems to be fit and healthy for a couple of weeks. Then they're back off sick and unable to attend work for a number of weeks. Then they come back. Also, the symptoms are changing each time, and it raises a bit of an antenna for the employer of, "What exactly is going on here?"

I have to say I was surprised when I educated myself in and around long COVID. This is an article that had appeared in "The Guardian" on 1 April saying that over one million people had symptoms of long COVID in the UK. It doesn't surprise me on our poll today that we were looking at 40%.

The situation with long COVID appears to be that people either had a diagnosis of coronavirus or COVID, they had a few weeks where they weren't well, and just never recovered after that, or where they really didn't have any symptoms but since then they have had a blight of health issues arising.

And these health issues are not limited to people's ability to simply breathe normally. They are issues that are arising in relation to arthritis, liver disease, complications with the . . . I am taking a mind blank here, but all sorts of . . .

Scott: I'll help you, Seamus. You get things called COVID toe. You get COVID finger. You get enlarged hearts. You get bladder problems. You get all kinds of things.

And the bizarre thing about long COVID is that it manifests itself in different ways as you continue. So you can start off having some breathing difficulties, and then you think you get better and then months later, you start getting pains in your stomach, or you get a toe that feels like you've got gout or something like that.

They have no real idea of why it's moving around and what it impacts and whether it's attacking some dormant virus that's already in your system, but there are over 200 symptoms. It's completely bizarre that you have something as bad as that that could do so many things and seems to last.

The other thing if you're reading those articles is that there are so many people that go back to work because they think they feel great. They go back too soon, and they're knocked back for months after that.

I suppose the answer to the question, even in UK terms, it certainly would be defined as a disability south of the border where you don't have the long-term aspect, but even here where you don't quite know but there are loads of people who have been sick since the first lockdown and before, it's very, very likely to be deemed a disability, which brings with it the requirement for reasonable adjustments and suchlike.

Seamus: Absolutely. I'm just looking, and I am jesting when I say this, but one of the issues that arises is brain fog. That seems to be something that happened to me there.

We know the definition of a disability is a physical or mental impairment which has an effect on their ability to carry out normal, day-to-day activities. The effect must be substantial. The effect must be long-term. We're maybe at a bit of an early stage for a lot of people because it's maybe something that is only happening now, remembering that the first cases really were the first wave last March/April time.

But there is certainly evidence that long COVID is a serious medical condition. Normally, with disabilities, you're looking at it lasting more than 12 months. It would seem to me . . . I would agree with you, Scott, 100%. I think that there are going to be a lot of issues that are going to arise going forward, if not already, for employers with long COVID: absences, people not able to do the job that they were doing previously, having to look at reasonable adjustments, and having to consult and work with the employee possibly in terms of looking at flexible working and even the aspect of working from home and things like that as well.

Some of the stories that I've read here, people have just been unable to return to their work whatsoever because they've been so badly affected by it. So I think it is definitely one to watch out for. I don't think that it's something that we can sweep under the carpet or not treat as being significant or serious. I think we need to have our eyes open to it.

And just a bit of a warning that you could potentially be facing or looking at disability claims coming down the line as a result of dismissals or unfair treatment because someone is absent as a result of long COVID. 

Scott: I think maybe the other warning for people listening today is that because it manifests itself in so many different ways and forms and seems to vary over time, you might think that somebody's got a sore toe and it might be long COVID, or you might think that they've got something else. I've seen reports of some employers treating it almost like ME was in the '80s, the yuppie flu. It doesn't really exist.

There is a tonne of evidence that there are long-term effects for people who got COVID. Keep in mind that most of the people who died were older. Most of the people, by definition, who have long COVID are younger. Therefore, it's really impacting on the workforce.

There are loads of people listening today who will have employees who are going to have long-term health problems. We don't know for how long, but they've lasted for months thus far and they're impacting on their ability to do all kinds of day-to-day activities like walking and lifting and going up stairs and whatever.

So I don't think there's any doubt, but it's one of those ones that because it's disguised as many other things . . . and they may not even have tested for COVID when they got it. They're just feeling rotten or something has happened. It's a really invidious, horrible little thing that's coming along. It's going to be arising, I think, in months to come.


This article is correct at 07/05/2021

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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