It may not be making the headlines anymore, but coronavirus is still in circulation and continues to cause disruption to day-to-day life and business operations.
The government’s current approach is to treat COVID-19 like seasonal flu, asking people to stay home if they have it to reduce the risk of passing it on.
As an employer, you may be wondering how long an employee should stay home for, and when will they be fit to return to work? With summer holidays on the horizon, it’s possible you also have staff taking leave and need to plan for absences.
If you enforce self-isolation, an employee with COVID who feels well enough, can return after five days with a negative lateral flow test according to government guidelines.
What about those who don’t feel well enough to return after five days? There is no set time frame beyond this, meaning that each case should be considered individually. Some people can bounce back from COVID, others may be suffering for longer from the symptoms of Long COVID. They may no longer be contagious, but could be finding it hard to get back on track.
Understanding Long COVID
Researchers have found that 20% of people who test positive for COVID-19 experience symptoms for as long as five weeks, and some can do so for up to three months. Long COVID, as the name suggests, lasts even longer.
Common symptoms can include extreme fatigue or tiredness. This could result in mistakes at work, impaired decision making or irritability. Other symptoms of Long COVID can include:
- Problems with memory and concentration, also known as “brain fog”
- Depression and anxiety
- Joint pain, pins and needles, dizziness, tinnitus
- Sickness and stomach complaints
Due to the impact of these ongoing symptoms, it has been questioned whether Long COVID constitutes a disability under the Equality Act.
Is Long COVID a disability?
In early May, the Equality and Human Rights Commission (EHRC) released a statement clarifying that, whilst Long COVID will not automatically constitute a disability, it may amount to one. This has not yet been confirmed in Ireland but could well be. In the Employment Equality Act 1998 the definition of disability in Irish law is as follows:
- The total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body
- The presence in the body of organisms causing, or likely to cause, chronic disease or illness.
- The malfunction, malformation or disfigurement of a part of a person’s body.
- A condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
- A condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.
This can mean a temporary condition could be interpreted as a disability, and any punitive action such as dismissal would need to be based on having all the medical facts available.
What does this mean for employers?
If you manage an employee who has Long COVID and is unable to perform their job as they had previously done, you should follow existing guidance on long-term sickness absence, having the employee medically assessed and making any reasonable accommodations, to support them back into work if appropriate.
A case for concern
We are already seeing the impact of this in what could be the first of many tribunals relating to Long COVID.
What happened in this case?
Mr Burke was dismissed from his role at Turning Point Scotland on the grounds of ill health, after being off sick with Long COVID symptoms for nine months. He had been struggling with several symptoms including exhaustion, headaches, and joint pain amongst others.
During this time, Mr Burke had sick note extensions from his GP and a conversation with Occupational Health. They concluded that he was medically fit to return to work, advising this be through a phased return.
However, four months later, after a follow up consultation had taken place, he was dismissed. His employer stated that there was nothing further they could do to adjust his duties and that it appeared he was too ill to return to work.
The case is ongoing, but a preliminary employment tribunal hearing has ruled that Mr Burke’s Long COVID did amount to a disability under the Equality Act. A disability is any physical or mental condition that has a long-lasting substantial adverse effect on a person’s ability to perform day-to-day tasks.
The tribunal are yet to decide if the dismissal was unfair. As we await the outcome, this case serves as a warning to employers that any instance of Long COVID should be dealt with carefully, and with Occupational Health guidance on any reasonable adjustments that could be made.
An employee being off on long-term sick leave can be a tricky situation to manage. If you have questions about your sickness absence policy or how best to manage, we can help.
While UK law is not determinative in Ireland, it is persuasive and as we operate a similar common law system, this ruling will need to be considered.