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  • International Workplace
  • 25 November 2020
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Playing the long game: challenges for employers when COVID symptoms linger

It will all be over by Christmas; at least that’s what we thought (and hoped) when COVID-19 first hit back in the spring. However, adapting to life and work in a COVID-19 world has proved a longer and harder road than many of us ever anticipated.

For many unlucky COVID-19 sufferers too, the effects of the virus have been long-lasting. Whether symptoms are very mild, or more problematic, for most people COVID is a brief, acute illness. However, it is now medically recognised that the phenomenon of ‘long-COVID’ can leave some, even mild sufferers, with persistent, debilitating health problems.

What is long-COVID?

Unfortunately for employers struggling to understand the impact of long-COVID on affected employees, there is no single ‘definition’ of the condition or list of symptoms shared by all sufferers. However, common features appear to include serious fatigue, breathlessness, joint pain, muscle aches and mobility issues (such as struggling to stand or walk for extended periods). Mental health problems have also been reported including depression, anxiety and an inability to think clearly. It is thought that the immune system does not immediately return to normal following COVID, which can cause continuing ill health. A network of NHS long-COVID clinics has been launched to help sufferers tackle persistent symptoms.

How can employers help?

The nebulous nature of long-COVID means that it is really difficult to set out a ‘blanket’ approach. Rather, in the same way as any other chronic medical condition, it is important to engage with the employee on a case-by-case basis, to understand the nature of their challenges and the impact of their symptoms on their day-to-day lives.

Arguably, the most effective support employers can demonstrate is patience and reassurance; by making sure the employee does not feel pressurised or rushed to get back to ‘normal’.

More than ever, it will almost always help to bring in occupational health to assess the employee’s condition and advise on any obstacles that may be preventing the employee returning to or remaining at work.

Reasonable adjustments

Very often, occupational health will be asked to express a view on whether an employee is disabled for the purposes of the Equality Act 2010 (which would trigger the employer’s duty to make reasonable adjustments in the workplace).

However, this assessment may be more difficult with long-COVID. Sufferers will not yet have suffered symptoms for 12 months (an essential element of the disability ‘test’) and, as knowledge of the condition is still developing, it is difficult to predict how long its effects will last.

Best practice therefore is to put the question of disabled status to one side and focus on an employer’s duty of care to safeguard the employee’s mental and physical wellbeing at work. Putting in place reasonable workplace adjustments, whether or not the employee is disabled, is simply the best way to support their recovery and enable them to add best value to the business.

The NHS COVID recovery plan provides practical advice to help long-COVID sufferers manage their health and deal with everyday tasks during the recovery period, and may be useful for employers thinking through what reasonable workplace adjustments may assist.  For example, the guidance advises patients to ‘Pace, Plan and Prioritise’, spreading out challenging tasks throughout the week, factoring regular breaks into the day, and identifying the times of day when symptoms are worse and avoiding more taxing work during those periods.

Building on this, employers might consider a temporary reduction in working hours, adjusting start and finish times, or a temporary re-allocation of responsibilities or workload to support suffering staff.

Remember that a large business with plenty of available resource will be expected to do more, and potentially spend more, than an SME, in order to provide reasonable adjustments. The nature of the role and operational/service context is always important in considering what adjustments are reasonable to implement. That is best addressed through good, regular communication with affected employees.

COVID-related absence

No matter how supportive the employer, or how determined the employee, there may of course be some cases where an employee suffering from long-COVID is no longer capable of performing their role, or where prolonged or repeated sickness absence cannot commercially be sustained. If so, as with other chronic illnesses, it remains possible to fairly dismiss the employee on capability grounds.

However, employers should proceed with care and make sure that alternatives to dismissal have been explored first. Dismissal may be unfair if it results from a failure to make reasonable adjustments, so consider very carefully whether you have done enough to support the employee to work differently, or to provide available alternative work. You must be able to show that it was not reasonable for your organisation to wait any longer before dismissing the employee (for example, their role may be business critical and ill-suited to being covered temporarily by other members of staff). Once again, the specific business context is important here.

Remember that reasonable adjustments may potentially include extending sickness absence thresholds under an absence management policy, thereby delaying an absence-related warning or dismissal. It is best to seek legal advice if you are unsure whether to count, or how to classify, COVID-related absences, under your absence management policy.

Dealing with long-COVID at work is likely to be a long-haul and, as with many COVID-related problems, employers are ‘path-finding’ as they go. Timely legal advice is essential to navigate this complex issue.

 

Ben Daniel (ben.daniel@weightmans.com) is Head of Employment, Pensions and Immigration at  UK law firm Weightmans LLP.