Reasonable Adjustments at Work for Long COVID
As everyone knows the Omicron variant has caused a huge spike in COVID-19 infections. There is thankfully some evidence which appears to show that the infection spike is starting to plateaux and therefore the worst may be behind us. It is likely that given the impact of the Omicron variant there will likely be an increase in cases of Long COVID which will impact the workplace.
The Office of National Statistics (ONS) have confirmed that in the week ending 31 December 2021 there were 3,270,800 infections in England – equating to 1 in 15 people. The figures for the UK were 3,739,600 infections – Coronavirus (COVID-19) Infection Survey, UK – Office for National Statistics.
The ONS have confirmed that as of 6 January 2022 there were approximately 1.3 million people in the UK suffering with Long COVID (2% of the population) . The ONS has confirmed that 40% of those people (506,000) have reported to suffering from symptoms of Long COVID for more than 12 months.
When considering these figures and percentages together with the spike caused by Omicron it appears highly likely that cases of Long COVID will increase, potentially significantly. With this in mind, employers are advised to get a better understanding of Long COVID and also how it will impact upon employees and the workplace.
Long COVID symptoms
It is my understanding that there is no accepted definition of what Long COVID is and how it affects people. A wide range of symptoms have been attributed to Long COVID and my understanding is that the number of different symptoms is likely to increase. Common symptoms (for employers and employees to be aware of) are:
- Problems with memory or concentration (Brain Fog).
- Joint pain.
- Shortness of breath.
- Heart palpitations.
- Chest pains.
- Pins and needles.
- Tinnitus and earache.
- High temperatures and sweating.
These symptoms are likely to have an impact on an employee’s ability to carry out their duties and to work at 100%.
I have previously written an article on whether Long COVID could be a disability as recognised by the Equality Act 2010. It is quite likely that anyone suffering from the symptoms of Long COVID for a number of months will be classed as disabled in accordance with the Equality Act 2010. As a recap a disability is:
- A physical or mental impairment.
- The impairment has an adverse effect on a person’s ability to carry out normal day-to-day activities.
- The impairment is substantial. “Substantial” is interpreted as being more than merely trivial.
- The impairment is long term – this is defined as:
- Having lasted for 12 months or longer;
- Being likely to last at least 12 months; or
- The individual will have the impairment for the rest of their life.
Case law recognises that effective participation in professional life constitutes a normal day-to-day activity.
It is likely that Long COVID (especially if the symptoms have lasted for at least 2 to 3 months) will constitute a disability.
Reasonable Adjustments at Work
Employers have a duty to make reasonable adjustments at work if a practice, policy, role, provision, criteria, physical feature or lack of auxiliary aid causes a disabled employee a substantial disadvantage at work.
Given symptoms of Long COVID include fatigue and brain fog it is very likely that those suffering may struggle to work as effectively as they did before they contracted Long COVID. Due to the spike in infections due to Omicron and given the statistics from the ONS about the prevalence of Long COVID employers are more likely to have disabled employees and therefore may well need to make reasonable adjustments at work
From a practical perspective employers should approach this issue by speaking to their employees to understand what aspect of their work they are struggling with and why and how that links to Long COVID. Once that is understood an employer will be in a much better position to determine (1) whether they need to change/adjust any element of work, (2) once established, can any adjustments be made and (3) if adjustments can be made whether it will be reasonable to make the adjustments.
I would strongly advise clear communication with any employees suffering from Long COVID. Employers should speak to employees to understand how they are struggling with work and what can be done to help them.
Where employers fail to make reasonable adjustments at work for disabled employees they can be sued for disability discrimination in the Employment Tribunal. Claims can be expensive to defend, costly awards can be made and Employment Tribunal judgements are published on www.gov.uk.
Long COVID will sadly impact many people. Those employees who are unlucky and suffer from Long COVID may struggle in the workplace.
Employers need to be alive to the limitations that their employees may suffer as a result of Long COVID and my advice is to speak to all employees to gain a full understanding of issues that they may suffer and what can be done to help them. Failure to do so will no doubt damage the working relationship, may lead to poor performance/output and may constitute disability discrimination.
We can assist and advise employers on making reasonable adjustments at work and employees on any issues relating to the impact of Long COVID in the workplace. If you’d like to speak about this, please don’t hesitate to call me on 01752 513549 or email me directly via robert.Zacal@gasolicitors.com.