The Implications of “Long COVID” on the Workplace: A New Type of Disability?
By Liam A. Entwistle, Wright, Johnston & Mackenzie LLP
We are all coming to terms with the impact of the COVID-19 pandemic in relation to the economic impact on employers, the arrangement of their workplaces in the future, and whether the sudden imposition of remote working has changed the make-up of their workplaces for good. It also applies to those many thousands of people who were unfortunate enough to contract COVID-19.
A diffcult implication of COVID-19, known as Post-COVID Syndrome or “Long COVID” has now arisen. The National Institute for Health and Care Excellence has, in its guideline scope, defined Long COVID as “signs and symptoms that develop during or following an infection consistent with COVID-19 which continue for more than twelve weeks and are not explained by an alternative diagnosis”.
The definition refers to clusters of symptoms, including “generalised” pain, fatigue, persisting high temperature, and psychiatric problems. There are similarities to the early definitions of chronic fatigue syndrome (“ME”).
COVID-19 does not have to be diagnosed. The current evidence suggests that Long COVID symptoms are persistent and debilitating. It may be diffcult to differentiate Long COVID psychiatric issues from those caused by the effects of national lockdowns.
The definition of disability in the Equality Act 2010 (S. 6(1)) is a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities
“Long-term” means over twelve months. Those who have presented with the earliest examples of Long COVID show that it easily lasts this length of time. The UK Courts say “substantial” means “not insubstantial”, not a high hurdle. Certainly, extreme tiredness could easily have such an effect. As workforces return to the workplace, given the loose definition of Long COVID, the low bar for establishing disability, and the impact of lockdowns, we can expect significant numbers of Long COVID diagnoses to cause lengthy absences from the workplace. If Long COVID is diagnosed or suspected, the condition should be treated as a probable disability. That should speed rehabilitation and avoid claims.
Liam A. EntwistleGGI member firm
Wright, Johnston & Mackenzie LLP
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Glasgow, Scotland, UK
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Wright, Johnston & Mackenzie LLP are an independent Scottish Law firm offering the full range of corporate, dispute resolution, and private client services. They are GGI’s sole Scottish member.
Liam A. Entwistle is a dispute resolution and labour law solicitor based in Glasgow, Scotland and as well as acting for large corporates, he has considerable expertise in solving employment and other disputes for and within family businesses. Liam is also an Accredited Workplace Mediator and a Fellow of the Chartered Institute of Arbitrators.
Published: Employment Law Newsletter, No.10, Spring 2021 l Photo: Andrey Popov - stock.adobe.com