Can 'long covid' be considered a disability?

22/02/21 . Blog

As our understanding of the coronavirus has developed over the past year, the effects of ‘long Covid’ have become apparent. Some people who contract Covid have found themselves battling symptoms for months after being clear of the actual virus.

Long Covid sufferers may be those who were very ill and required hospital admissions due to lung disease and blood clots, or those who had milder symptoms reporting exhaustion and breathlessness for a long time after being ill.

As long Covid may prevent employees from working properly, questions have been raised about whether it should be considered an occupational disease, and what kind of protection sufferers have at work.

Currently long Covid sufferers would need to meet the definition of a disabled person under the 2010 Equality Act to be eligible for protection at work. Employees would have to prove they have a physical or mental impairment with a long term substantial and adverse effect. Long term is defined as having lasted or likely to last for 12 months.

Early dialogue

The Equality Act does have some deemed disabilities, cancer, MS and HIV, for example, but it would be surprising to see long Covid added to that list. Evidence of disability usually comes from a dialogue with the worker and medical reports from their GP or the business’s own occupational health provider.

If employees can satisfy this legal definition, they will have a protected characteristic capable of protection, meaning the duty not to discriminate arises. This can be because of the disability itself or something associated with it, such as absence.

Employers have a duty to consider reasonable adjustments to the working method or workplace. Some employers may be able to accommodate through light duties, regular rest breaks or more flexibility in location.

The key is to have early dialogue with the employer and perhaps their medical advisors or occupational health to see what can be accommodated and agrees. If an extended absence is required, furlough can be considered while the scheme lasts.

Kate Hindmarch, partner in Employment Law at Langleys Solicitors

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