The head of employment policy at the Equality and Human Rights Commission (EHRC) suggests employers should treat staff suffering from long Covid as disabled. So what does this mean for Watford employers?

Supporting staff suffering from long Covid

Long Covid is a condition we are still working to understand, and there is no express legislative protection for people suffering from it. In addition, given that symptoms can vary and fluctuate, it is not clear that everyone suffering from long COVID will be disabled for equality law purposes.

What is the legal definition of a disability?

Under the Equality Act 2010, a person will be considered disabled if:

• they have a physical or mental impairment

• the impairment has an adverse effect on their ability to carry out normal day-to-day activities

• the adverse effect is substantial and long term (lasting 12 months or more)

How can organisations determine whether an employee meets the definition?

It is not for the organisation to determine whether an individual is suffering from a disability for equality law purposes. Instead, medical advice should be sought. When obtaining medical evidence of an employee's condition, organisations should take the opportunity to ask detailed and precise questions to determine whether the individual satisfies the legal definition of disability.

Advice can also be sought on what adjustments might help the individual return to, or remain at, work, as well as on a prognosis and timescales for recovery.

Considerations for employers

It may well be the case that treating all long COVID cases as disabilities will provide the most protection from disability discrimination claims. However, from a practical perspective, treating all long Covid sufferers as disabled will trigger the duty on employers to make reasonable adjustments. This is something employers will want to consider carefully, particularly if the medical advice is that the range of symptoms presenting in an individual case does not meet the definition of disability.

  • Rebecca Fox is a Partner at VWV, a national law firm with local offices in Clarendon Road, Watford. Get in touch on 07747 481 989 or at rfox@vwv.co.uk