The Office for National Statistics has reported that approximately 1 in 5 individuals testing positive for COVID-19 exhibit symptoms for a period of 5 weeks or longer and approximately 1 in 10 exhibit symptoms for a period of 12 weeks or longer. Individuals experiencing these symptoms are being told it is “Long COVID”, but these individuals are not all experiencing the same symptoms because Long COVID can impact employees very differently.
NHS England published a list of Long COVID symptoms which includes amongst others:
- extreme tiredness (fatigue);
- problems with memory and concentration ("brain fog");
- difficulty sleeping (insomnia);
- joint pain; and
- depression and anxiety.
The various symptoms associated with Long COVID mean one single approach to supporting employees back to work may not be effective in all circumstances.
- Supporting employees with Long COVID symptoms
Employers should engage with and understand the symptoms employees are experiencing. The Society of Occupational Medicine has published specific guidance for occupational health professionals on managing a return to work for employees experiencing Long COVID. The emphasis is on employees and employers working together, the guide states:
“it makes sense for workers and employers to work together towards a return to work that is the most productive for all concerned.”
Employers should meet with employees to discuss returning to work and to consider whether flexible or home working may be beneficial. Occupational Health professionals can assist as they can help understand the nature of the employee’s symptoms and explore ways in which the employer can facilitate the employee’s return, including making reasonable adjustments.
Employers will need to assess the risks, manage workloads and absence, and accommodate circumstances where employees are unable to carry out their normal duties due to their symptoms.
- Long COVID: Risks for employers
If employers fail to engage with employees there are potential risks. It can be difficult to reengage employees after long periods of absence which may be compounded if employees aren’t supported.
In addition to this, there are potential disability discrimination considerations. The definition of disability in relation to the Equality Act is that an employee has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. In our view there is a reasonable likelihood that employees with long COVID could be disabled for the purposes of the Equality Act. In these circumstances, the obligation on the employer is two-fold – to provide reasonable adjustments in order for the employee to return to and attend work, and not to treat the employee less favourably on the grounds of their disability. In our experience, the main issues in this context tend to arise on the reasonableness of the adjustments and in the context of absence management, whether ultimately the employee will be able to return to work. For the sake of clarity, the employee’s status as a disabled person does not result in any dismissal being automatically unfair as a consequence of an absence management process, although undoubtedly the status of the employee in the context of the Equality Act increases the risk to the employer of reaching a conclusion in a procedure of this sort. In addition, it is unclear as to how Employment Tribunals will deal with cases brought as a consequence of the pandemic. We would strongly urge employers to engage with their HR providers and/or lawyers to guide them through this unchartered territory.
Although management of long COVID related absence and sick pay are in many respects’ separate issues, it is clear that unions in particular will seek to bring the employer’s attention to the relevant sections of the Burgundy Book and Green Book regarding entitlements in the context of any absence management process.
Section 10 of the Burgundy Book has been widely cited with reference to COVID. However, it has the potential to be more problematic when absences extend for long periods. By way of reminder:
“When the approved medical practitioner attests that there is evidence to show a reasonable probability that an absence was due to an infectious or contagious illness contracted directly in the course of the teacher’s employment full pay shall be allowed for such period of absence as may be authorised by the approved medical practitioner as being due to the illness, and such absence shall not be reckoned against the teacher’s entitlement to sick leave under paragraph 2 above, though such absences are reckonable for entitlement to Statutory Sick Pay.”
Therefore, in practical terms, if a long COVID sufferer teacher presents the employer with evidence from their GP (or other medical practitioner) that there is a reasonable probability that their condition is due to them contracting COVID at school, the above provision shall provide for full pay to be paid for the period of absence. In addition, the absence shall not be counted as part of that teachers’ entitlement. Unfortunately for schools, there does not seem to be any mechanism within the Burgundy Book for the employer to challenge the GP’s assertion about where the employee contracted COVID. Again, unfortunately, many of these questions will be decided in the context of Employment Tribunals down the line and there is no certainty at this stage, whether a school who can validly question the GP’s assertion about the origin or the infection (perhaps because the school has had no positive cases or none at that time).
Section 10.9 of the Green Book may provide the employer with a little more room to debate the point for support staff, as there is no reference to a medical practitioner attesting the position:
“An employee who is prevented from attending work because of contact with infectious disease shall be entitled to receive normal pay. The period of absence on this account shall not be reckoned against the employee’s entitlements under this scheme.”
There are undoubtedly many uncertainties for schools in attempting to navigate through this new condition from an HR perspective. We would suggest that any action which is taken should be supported by clear evidence of necessity relevant to that particular education establishment. There will be inevitable risks incurred if the school seeks to manage absence associated with long COVID, and in that respect we would suggest that employers engage closely with their HR provider/lawyers but also the relevant unions at an early stage, in an attempt to achieve an understanding of the school’s position relevant to that individual’s absence.