Weekend Feature: Should Employers Treat Long COVID As A Disability?

Zeeshan Hussain an Associate Director in the Corporate Law team at Progenyasks: Should employers treat Long Covid as a disability?

A lot has been written over recent months about whether Long Covid should be treated as a disability. As an employer, a lack of clarity is always challenging and leaves organisations potentially vulnerable, so it’s useful to review this matter from the current legal standpoint.

To firstly give some perspective on the potential scale of this issue, The Office for National Statistics (ONS) reported that as of January 2022, an estimated 1.3 million people (1.9% of the UK population) were experiencing self-reported Long Covid. This is against a total figure of 14.1 million disabled people in the UK.*

It’s a significant issue therefore and the number of people experiencing Long Covid is only likely to grow.

Is Long Covid classed as a disability?

The Equality Act 2010 defines a ‘disability’ as a physical or mental impairment that has a substantial and long-term detrimental effect on a person’s ability to carry out normal day-to-day activities. Long Covid could potentially fall within this definition, however, in the absence of case law it is not currently formally recognised as such and this is yet to be tested at Employment Tribunal level. Whether Long Covid will meet the threshold of a disability in the future will be determined by Employment Tribunals looking at individual cases.

Government guidance stipulates that an impairment is considered 'long term' if it is likely to last, or has lasted, 12 months. If we look to guidance from the Advisory, Conciliation and Arbitration Service (Acas) it states that Long Covid is still a new illness and it may take time to understand it fully, warning that the effects of it could also cause other impairments. It advises that rather than trying to work out if an employee's condition is a disability, good practice for employers is to focus on making reasonable adjustments to working practices.

What steps can employers take?

It’s still too early to assess if Long Covid will amount to a disability in law but employers would be sensible to exercise caution and there are several steps they can take to protect themselves against any future claims of disability discrimination and potentially unfair dismissal, whilst supporting their employees.

Firstly, ensure a formal Covid policy is in place, including the approach to Long Covid. This should include making reasonable adjustments. The reported symptoms of Long Covid vary significantly between patients, so adjustments will need to be reviewed on a case-by-case basis but could include changes to workplace practice, procedure, or potentially to an individual’s job role to ensure the business is compliant with equality legislation.

Firms should also be prepared to consider flexible working requests and have the infrastructure in place to support this. Recent research from Close Brothers Asset Finance found that 57% of SMEs are expecting employees to return to the workplace full-time now that restrictions have been largely lifted, so firms need to ensure that they are not creating a business structure that makes certain reasonable adjustments difficult to administer.

In summary, from a legal perspective the status of Long Covid currently remains an untested area and therefore employers should follow the guidance available and exercise good practice. By treating Long Covid as a disability and undertaking reasonable adjustments for employees affected, organisations will protect themselves against potential disability discrimination claims, whilst continuing to support their employees as effectively as they can. The position on Covid-19 is constantly developing, so employers should ensure they have the correct structures in place and seek professional advice if unsure on how to handle any specific case of Long Covid.


*Family Resources Survey: financial year 2019 to 2020