Legal Update: Long COVID

As ever, discrimination remains a topic high on the legal and social agenda. More recently, we have seen that expand and develop in relation to long COVID. The key aspects and guidance relating to this are outlined below.

  • Equality Act 2010 - disability definition

Under The EqA 2010, those with a physical or mental impairment that substantially impacts their ability to carry out normal day-to-day activities, which is likely to be long-term (typically 12 months or more), qualify as disabled and are afforded protection from discrimination at work. There is also a positive obligation on their employer to make “reasonable adjustments” to their working conditions/environment to assist their working (e.g. flexible hours/locations, support aids etc).


  • Equality and Human Rights Commission (EHRC) – long COVID not (necessarily) a disability

Earlier this month the EHRC, the body responsible for promoting and enforcing equality and non-discrimination laws, Tweeted “Discussions continue on whether ‘Long Covid’ symptoms constitute a disability. Without case law or scientific consensus, the EHRC does not recommend that ‘Long Covid’ be treated as a disability.”

 

  • Joint Protocol on Managing Long COVID

As many of you will be aware, in May 2022 several trade unions issued a Joint Protocol on the Management of Long COVID. The protocol is intended to be an agreement between the trade unions and the employer as to how the employer will manage long COVID-related sickness absence and includes greater flexibility and paid leave (irrespective of service).

 

  • EPM's guidance on long COVID and the Joint Protocol

We recognise that long COVID can be a serious and debilitating condition, potentially affecting many people. However, we do not feel it should be afforded special categorisation or treatment. Whilst we accept that long COVID may amount to a disability under the EqA 2010, it is not automatically the case and so there is no need to treat it differently universally.

Employers already have the tools and experience to manage complex sickness absence in a sensitive and supportive manner, within existing sickness absence policies and processes. Employers are also well versed in assessing the specifics of a case on an individual basis.

Regarding pay, the Burgundy and Green Books already provide employers with a structure and flexibility which is perfectly adequate. We believe that the additional cost of extra sick pay (and introducing a completely new category of ‘disability pay’) would place an unfair and unnecessary financial burden on employers.

ACAS guidance supports this position and makes it clear that management of long COVID should be done in line with usual sickness processes and pay.

In short, we believe that the Joint Protocol goes far wider than is necessary, and long COVID-related absence can be handled adequately and fairly within normal sickness practices and procedures.


Rebecca Ryan, Legal Counsel

EPM can help

If you would like help or support with any areas of discrimination or sickness absence management, please get in touch with us at services@epm.co.uk or 01480 431 993.