Long-COVID – is it likely to be a disability under the Equality Act?
On 21 June 2021, the Trades Union Congress (TUC) published a report on the impact of “long-COVID” on working people, in which it called for long-COVID to be recognised as a disability and for COVID-19 to be classified as an occupational disease. The TUC report delves into workers' experiences of long-COVID, with 5% of respondents revealing that they had lost their jobs as a result of the impacts of long-COVID.
This article considers what disability means under the Equality Act 2010 (EqA) and looks at the possibility of long-COVID falling within the definition.
What is the definition of a disability?
The definition of disability is set out in Section 6 of the EqA, which poses four essential questions:
- Does the person have a physical or mental impairment?
- Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
- Is that effect substantial?
- Is that effect long-term?
Can Long-COVID be a disability?
Long-COVID is a term used to describe the effects of Covid-19 that continue for weeks or months beyond the initial illness. It is not a prescribed disability and so employers will need to consider whether an employee reporting long-COVID symptoms satisfies the legal test for disability under S.6 of the EqA:
Does the employee have a physical or mental impairment?
It is likely that a person suffering from long-COVID will be able to establish that they have a physical or mental impairment. This will either arise from one, or a number of, the symptoms they experience as a result of long-COVID.
Research published in June 2021 by Imperial College London found two main categories of ongoing symptoms of COVID: a smaller group of people with respiratory symptoms, such as a cough or breathlessness, who were more likely to have had severe Covid-19 illness initially, and a larger group with a selection of more general symptoms, particularly tiredness and fatigue.
Does that impairment affect a person’s ability to carry out normal day-to-day activities?
ONS statistics suggest that, in March 2021, self-reported long-COVID symptoms were adversely affecting the day-to-day activities of 674k of those 1.1m people who reported symptoms. The fatigue and breathlessness it causes from simple activities such as walking short distances indicates that this illness has the potential to disrupt normal life significantly.
Is the effect substantial?
The law requires that the effect must be more than 'minor or trivial' and this will need to be considered on a case-by-case basis. Reports suggest that some long-COVID sufferers have developed seriously decreased lung capacity, to the extent that they struggle to walk for more than for a few minutes, which seriously limits their ability to carry out day-to-day activities. However, others aren’t reporting such severe symptoms.
Is the effect long-term?
Under the EqA, 'long-term' means the impairment will have lasted 12 months or more or is likely to last for 12 months or more.
At present, it could be challenging for employees to establish that the effects of long-COVID have lasted the required 12 months, considering the virus is relatively new. There is also currently not enough evidence to assess how likely it is that the effects will last for 12 months or longer.
There are so many unknowns with this virus and only time will tell what the long-term impact of it will be, at both a societal and individual level. In view of this, employers will need to carefully consider each case individually and take medical advice if required.
How should employers proceed where employees are reporting symptoms of long-COVID?
When an employee presents with symptoms of long-COVID, employers should act carefully to ensure they do not discriminate against the employee, as the illness could become classified as a disability under the EqA.
There should be open communication with the employee to ascertain the effect their illness is having on their work and what action and support is required. Establishing the precise symptoms of their illness and for how long they have been suffering with the same will help the employer decide if they are likely to be classed as disabled.
Research and evidence surrounding long-COVID is ongoing and, as the findings develop, there will be a clearer picture of whether long-COVID is an illness capable of being defined as a disability under the EqA.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Sophie Hay or Rachael Lloyd to discuss any issues you are facing.