The persistent symptoms of long Covid can have a serious detrimental effect upon an employee’s work.
It may result in the employee being unfit for work for several months or cause their performance and attendance to fluctuate due to the onset of their symptoms.
We outline below how you can deal with absence and performance issues arising from long Covid and best practice for supporting employees with long Covid.
What is long Covid?
Generally, people tend to completely recover from Covid-19 within 12 weeks, but for others the symptoms persist for much longer.
The NHS describes ‘long Covid’ (also referred to as post-Covid-19 syndrome) as when the symptoms of Covid-19 last weeks or months after the infection has passed.
Although the symptoms of long Covid are different for every individual, the most common symptoms include:
- Extreme tiredness (fatigue)
- Shortness of breath
- Chest pain or tightness
- Problems with memory or concentration
It is important to note that the nature of long Covid means that symptoms may come and go.
An employee suffering from long Covid may feel well enough to work one day but be incapacitated the following day due to their symptoms.
Is long Covid a disability?
Long Covid will not automatically qualify as a disability under the Equality Act for employment law purposes.
However, in serious cases long Covid is likely to meet the definition of disability.
A person has a disability for these purposes if:
- they have a physical or mental condition with substantial adverse effects;
- the condition has lasted or is likely to last for at least 12 months; and
- the condition and its effects impact the individual’s day-to-day activities.
The key factor in determining whether long Covid is a disability in any case will be whether it has lasted or is likely to last at least 12 months.
If the symptoms listed above are serious, they are likely to adversely impact the individual’s daily activities.
Since long Covid is a new condition and its symptoms are still being researched and studied, it may be difficult to determine how long it is likely to last.
Therefore, the best approach would be to obtain an occupational health report so that you can make an accurate assessment.
In the event that a claim is brought, it will be for the employment tribunal to determine whether the employee’s condition amounts to a disability, based on medical evidence available at the time of the alleged discrimination without the benefit of hindsight.
Absence due to long Covid
The main issue for employers stemming from long Covid is high levels of sickness absence.
The approach you should take when dealing with this will depend upon whether the employee has a pattern of intermittent short absences, or they are on a period of long-term sickness absence.
Short persistent absences
It is common for businesses to use trigger points as part of their absence management policy.
This means that if an employee exceeds the maximum number of sickness absence instances within a set period, they will be subject to formal action leading up to dismissal if their attendance does not improve.
Many employers have chosen to ignore Covid-related absences for the purposes of absence management, but this may no longer be viable given the lasting effects of long Covid.
You can fairly dismiss an employee for having an excessive sickness absence record if you:
- follow a fair procedure, by exploring the causes of their absence and giving them reasonable opportunity to improve their attendance.
- can demonstrate that their absence has caused disruption to your business by hindering performance or the service you offer.
However, this approach should not be applied to employees experiencing persistent long Covid symptoms which prevent them from attending work a few days at a time.
Where the employee’s absences are connected to their medical condition of long Covid, you should obtain medical advice either from the employee’s GP or occupational health.
This medical report should advise you on:
- the impact of the employee’s symptoms on their work
- whether the employee’s attendance is likely to improve in the future
- how long the symptoms are likely to last
If the medical evidence suggests that the employee’s long Covid may amount to a disability, you should explore any reasonable adjustments that could lower the employee’s absence levels.
For example, allowing the employee to work from home on days when they experience symptoms or reducing their working hours.
If such adjustments are not practicable or the medical prognosis suggests that they would not improve the employee’s attendance, then you may still be able to fairly dismiss them.
However, you should be able to clearly demonstrate that there is little prospect of the employee’s absence levels improving for a significant period of time, therefore your business can no longer accommodate them.
This will enable you to defend any resulting discrimination claims on the basis that any alleged disability discrimination was justified as a proportionate means of achieving a legitimate aim.
Long-term absence
If an employee is on long-term sickness absence due to contracting Covid-19 and suffering continuous symptoms, you should request the employee’s consent to obtain a medical report.
This will enable you to make an informed decision about:
- how long the employee is likely to be unfit for work;
- whether their condition amounts to a disability; and
- whether there is anything you can do to facilitate their return to work.
As outlined above, if the employee has a disability, you are under a legal duty to explore whether any reasonable adjustments can be made to the employee’s role to enable them to return to work.
Such adjustments could include:
- Altering their duties
- Reducing their working hours
- A phased return
You should carefully consider such adjustments before engaging in a formal capability procedure.
However, if you consider that dismissal may be necessary, you should invite the employee to a formal capability hearing, advising them that dismissal is a potential outcome.
They should be given the opportunity to put forward any suggestions they may have as well as a right to appeal the decision.
Performance issues resulting from long Covid
You may notice that an employee’s performance falls below their normal standards when they return to work after contracting Covid-19.
If performance issues arise, I advise raising your concerns with the employee informally in the first instance to see whether it is caused by the physical or mental effects of long Covid.
If their performance is being affected by long Covid, you should obtain a medical report to establish the effects of the employee’s condition on their work and the best ways to address the issue.
If the medical evidence suggests that the employee’s performance is likely to improve soon, then you should support them as best you can through temporary adjustments to their role.
If the problem is expected to persist long-term, a more considered approach is required.
You should try to pinpoint the root of the problem and implement measures to help resolve it.
For example, if the employee is suffering from fatigue and shortness of breath, you could consider allowing the employee to work from home when these symptoms arise or allowing them more regular breaks throughout the day.
This would also fulfil your duty to make reasonable adjustments if the employee’s long Covid is considered a disability.
If the employee’s performance still does not reach the required standards, you could initiate the formal performance management procedure.
This would involve holding a formal hearing with the employee to discuss their performance issues and any measures you could implement to help them.
In most cases, you should set the employee at least one formal improvement notice and allow them time to improve before considering dismissal to avoid potential claims of unfair dismissal and disability discrimination.
Best practice
- Take an individualised approach – like any other medical condition, long Covid affects people differently so you should avoid making any presumptions. It is important to engage in meaningful discussions with each employee to understand how it is impacting their work and how best you can help them.
- Get medical advice – before making any decisions regarding an employee’s performance or absence levels, you should obtain a GP or occupational health report so that you grasp the medical position.
- Inform managers – managers should be aware of the impact of long Covid on an individual’s work so that they can be proactive and supportive.
- Offer support – if an employee discloses that they are suffering with long Covid symptoms, you should consider making temporary adjustments to assist them in their work.
