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The difficulty with the term ‘Long COVID’ is that it doesn’t have any official recognition as a medical condition at present, but that symptoms associated with it carry on long after the period of infection is over.
Our view is that absences that last longer than the period of infection but that appear to be connected to having contracted the virus in the first place, in the absence of guidance, should be managed sensitively and on a case-by-case basis. The absence should be managed in accordance with the relevant provisions in your sickness absence policy and with regards to the reason for absence i.e. extreme fatigue.
Regular contact should be maintained with the individual, Occupational Health referrals where appropriate should be arranged and regular sickness absence review meetings should take place. It’s worth noting that employees may have more up-to-date information from their own medical team, so this should also be considered. There are several Long COVID clinics that have been set up around the country which should lead to a greater understanding of the long-term effects of COVID.
Regular sickness absence review meetings provide a means of discussing any additional support that an individual may need whilst on sick leave. These meetings provide an opportunity to understand where the individual is in terms of their illness or recovery and can provide additional support whilst absent such as offering psychological support through counselling services and/or physiotherapy sessions where appropriate. In addition, they are a forum for discussing practical steps and providing reassurance to support an individual contemplating a return to work.
The above principles are good practice in relation to any long-term sickness case, the key thing to remember is that each case will need to be managed within the specific context of the individual. For instance, insisting on attendance at sickness absence review meetings (either in person or virtually) when the individual is clearly not well enough to engage fully would be counterproductive. However, it is vitally important that contact is made in the first instance, don’t be afraid to initiate contact at the appropriate time, failure to do so can often leave an employee feeling isolated and worrying unnecessarily about their employment. Once contact has been made it is easy to establish a suitable plan for managing individual cases. As ever, ensure that your documentation and record-keeping is up to date and that you evidence any support you have offered.
The management of these cases becomes more difficult where under normal circumstances the length of absence may lead to a reduction in pay or termination of employment on the grounds of ill health capability. Whilst we appreciate that it is not possible to continue with a long-term absence indefinitely, we believe it is more likely that normal timescales will be extended in terms of the management of long-term cases, whilst accepting there will come a point where an absence cannot be sustained. However, there are several studies being undertaken into the longer-term effects of COVID as well as possible treatment options, and we are likely to see more progress with this over the coming months. We believe that, for the most part, the management of long-term absences as a result of COVID will not be problematic. Still, this is new territory, and it is therefore likely that where a dispute arises over the management of a case it will be contentious, emotive and could involve equality claims. It is also likely that should a case reach tribunal, the reasonableness of management actions or decisions at every stage of the process will be scrutinised, including options such as an extension to the normal timescales for making decisions about an individual’s pay and ultimately their employment.
Industrial injury
Normally the issue of industrial injury doesn’t arise with infectious diseases. Usually, once the infection period is over, most individuals return to work in a relatively short space of time and, therefore, the provisions for the treatment of infectious diseases in the Burgundy and Green Book are sufficient. However, with Long COVID some employees are not fit to return to work because of continuing illness once they are no longer infected.
The question around industrial injury appears to be arising as more employees are entering into either half or nil pay due to the long-term effects of COVID. This is a contentious and complex area and should be dealt with on a case-by-case basis after seeking relevant advice, particularly as more information comes to light or cases are possibly tested through the courts. Certainly, Health & Safety advice, and perhaps even legal advice, may need to be sought before accepting responsibility for an industrial injury claim.
Over the past few weeks, a group of cross-party MPs supported by the British Medical Association have called for the Government to recognise Long COVID as an occupational disease in relation to health care workers and key workers, where COVID has been contracted as a direct result of employment. If successful, this could lead to industrial injury claims.
Previous and reissued LGA advice points employers in the direction of having always been able to utilise their discretion to extend sick pay, to avoid employees suffering undue financial hardship because of the long-term effects of COVID, should they wish to exercise this discretion.
