Employment groups have called on employers to work proactively with employees who are suffering from the long-term effects of coronavirus and make reasonable adjustments so individuals can be better supported to stay in or return to work.
The move comes after the Equality and Human Rights Commission (EHRC) warned that ‘Long Covid’ may not always be protected as a disability under the UK’s Equality Act .
Long Covid Work, a vocational, rehabilitation, education and training group that includes HR and occupational health professionals who have Long Covid , has also emphasised the wider organisational benefits of supporting workers who have developed the condition since the pandemic started in early 2020.
The employment support group, which has worked with the Chartered Institute of Personnel and Development (CIPD) and the Society of Occupational Medicine to produce practical guidance for employers, occupational health and HR, warns the EHRC’s statement could ‘undermine efforts to ensure that patients living with Long Covid do not suffer discrimination at work’.
In its announcement, the national equality body said: ‘Given that “Long Covid” is not among the conditions listed in the Equality Act as ones which are automatically a disability, such as cancer, HIV and multiple sclerosis, we cannot say that all cases of “Long Covid” will fall under the definition of disability [in the Equality Act].’
The EHRC added that it will be up to employment tribunals and individual courts to determine whether an individual worker’s Long Covid symptoms are considered a disability. Its statement implied it would be considered a disability if the individual’s symptoms have ‘a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities’.
The equality body’s statement concluded: ‘To support workers affected by “Long Covid” and avoid the risk of inadvertent discrimination, we would recommend that employers continue to follow existing guidance when considering reasonable adjustments for disabled persons and access to flexible working, based on the circumstances of individual cases.’
Commenting on the EHRC’s statement, Rachel Suff, senior policy adviser for employment relations at the CIPD, said organisations should be proactive and make individually helpful adjustments even if someone’s condition may or may not fall within the disability definition.
‘There is a whole vast array of different adjustments that could be helpful because there are so many symptoms that someone could have,’ she says.
‘It is a multi-system disease so the different adjustments that might be helpful to one person could be completely different to someone else so that individual, tailored approach is really important.’
Lesley Macniven, chair of Long Covid Support’s employment advocacy group and a founder of Long Covid Work, told IOSH magazine that while the pandemic has been a strategic challenge for all businesses, employers bringing staff back into the physical workplace need to consider that 2.8% of the UK’s population has been impacted by Long Covid and may not be able to transition into their former role seamlessly.
This means employers need to have resources in place to support these individuals so the business doesn’t lose valuable talent.
She stresses that it is important that employers ask each employee suffering from Long Covid what they had learned about managing their own illness and how they would translate that into the working environment.
‘One of the biggest ongoing issues for people is fatigue and that is managed through pacing,’ she told IOSH magazine.
‘For example, a phased return might look to your employer like an offer to, “Come back one day a week for a full day”. However, the need to pace might lead you to suggest that, “Doing shorter days over the week, with gaps in-between, for only a couple of hours perhaps in the office one day but at home the others, would be a better way to see how I manage to do the work and deal with travel as well”. It’s very much around looking at what the person is capable of doing and being led by that.’
On timing, she adds that phased returns are generally taking 12 weeks or longer to gradually build up hours and tasks. Again, it has to be led by how well the worker is doing. ‘Returning too quickly is a false economy as relapses are common,’ she warns.
The CIPD, which has published research and four sets of guidance to better inform support for Long Covid sufferers, notes that although many individuals do return to work and thrive, many others will require some appropriate support and work adjustments.
Participants in the CIPD research said that good employers provided early communication; flexible, slow and gradual return-to-work patterns; and ongoing support from colleagues and managers.
Rachel told IOSH magazine that feedback from focus groups revealed that flexible working arrangements such as home and hybrid working and not having to travel at peak commute times were greatly valued.
Poor practices cited in the research include returning to a full workload, returning despite feeling unwell, missed return-to-work meetings and no work adjustments.
One of the challenges aroundLong Covid is that it is such a complex and new condition and many sufferers haven’t been medically diagnosed, adds Rachel. For this reason, she recommends that organisations draw on occupational health expertise if it is available.
‘It’s about getting that early intervention,’ she says. ‘There are some organisations that refer early on for chronic health conditions and get the benefit of expert occupational advice, for example, for mental health. As such a new and complex condition, employers would really benefit from specialist advice on how best to support people with Long Covid.’
The Health and Safety at Work Act requires employers to protect all their employees from the risk of injury or harm at work, so far as is reasonably practicable.
As Kevin Bridges, partner and head of health and safety at law firm Pinsent Masons LLP, points out, this includes disabled or otherwise vulnerable workers and also covers risk to people who may be affected by the work (for example visitors).
Kevin further explained that although the Management of Health and Safety at Work Regulations set out specific requirements for some groups, including young or pregnant employees, there is no specific provision for disabled employees.
Even so, the particular needs of these employees, and of those with other vulnerabilities, must be taken into account as part of an employer’s risk assessment, with suitable risk mitigation measures put in place where practicable.
‘This has been highlighted recently with the UK government’s withdrawal of the requirement to explicitly consider the risks of Covid-19 in workplace risk assessments,’ he says.
‘Despite this removal, employers must still make their own judgement on managing the risk of Covid-19 in their particular workplace and will have to carefully balance workplace health and safety risks for all staff, having particular regard to the needs of those more vulnerable for whatever reason.’
Kevin adds that, as in all cases, employers should ‘speak to staff to understand their concerns and consider reasonable adjustments where necessary and practicable such as making changes to the workplace or how the employee works.’
Lesley told IOSH magazine that long Covid sufferers who were able to work as part of their rehabilitation were likely to return to work more quickly than those who are off sick at home.
Even so, she warned there is a danger that some employers may feel the worker will never get better and be tempted to dismiss the individual on the grounds of their capability to do the work.
She argues a more productive approach is to find ways to enable the person to feel they are still valued, even if they are only notionally a team member and contribute less than they did before falling ill.
‘Even that feeling that they are still part of the team and the team isn’t blaming them for being ill is a massive boost to people’s ability to recover,’ she says.
Lesley says that managers will need support and training to better understand what good management of long Covid looks like.
Although there has already been a number of cases in which workers with long Covid have taken their employers to tribunals, she says that reputationally it is more sensible for employers to work with those impacted to make reasonable adjustments.
‘What we are finding is that those organisations that genuinely value employees, listen to them and are driven by their initiatives and resourcefulness find it much easier to find solutions,’ she says.
‘Very rigid cultures where it’s very command and control probably find it quite a struggle to be agile and adapt and may also be perplexed as to how to retain this employee when they can’t do what they used to do because the systems themselves aren’t particularly flexible.’