By Rabika Basran, employment solicitor at award-winning law firm Gardner Leader.

 

As we continue to progress through the Coronavirus (‘COVID’) pandemic, more workplaces are attempting to return to their new normal. During this time, we must continue to consider the long-term effects of contracting COVID (commonly referred to as ‘Long COVID’) and the impact it can have on an individual’s working practices.

 

Long COVID generally refers to individuals continuing to experience COVID-related symptoms for some time after their infection, such as fatigue, short-term memory issues, dizziness, skin rashes and general long-term sickness. The NHS has a working list of common symptoms on their website and, health watchdog the National Institute for Health and Care Excellence (NICE) defines long Covid as lasting for more than 12 weeks, although some people consider symptoms that last more than eight weeks to be Long COVID.

 

Nevertheless, it is worth noting Long COVID is a relatively new illness so the full extent of symptoms are still unknown.

 

From what is currently known, symptoms may affect an individual’s ability to cope with normal day-to-day activities, including their employment.

 

In order to deal with Long COVID issues in the workplace, here are seven points for employers to consider:

1. Training and development for senior staff 

 

It is important to note that staff affected by Long COVID could initially raise concerns with their immediate supervisors, or they may go unnoticed. The illness has a wide range of symptoms as outlined above, and although it is not clear what effects it may have on the individual in its entirety, what will be clear are the effects on workload, output, and general progression. It may also be the case that staff who have remained outside of the physical workplace are experiencing health issues that have gone unnoticed by their employer.

 

Therefore, as we aim to return to more ‘normal’ working practices, it is important that training and development does not take a back-seat. Employers should ensure that senior members of staff (including managers, team leaders, and supervisors) are trained to identify vital Long COVID-related concerns within their workforce, and to be more vigilant and approachable with colleagues, armed with knowledge to address concerns brought directly to them.

 

Interactive sessions in which senior members of staff are alerted about Long COVID and the symptoms or general effects of the condition on their workforce are a good way to provide initial training.

 

The introduction of a general guidance document or policy is a practical step which would ensure senior staff have guidance on hand to revert back to when investigating concerns, and also ensures a similar approach to concerns is taken across the business. At the same time, employers should note that a detailed policy is not required as this may encourage a ‘blanket’ approach, which may not be as sensible given the wide variety of symptoms Long COVID presents.

 

It may also be sensible to regularly review the NHS symptoms as well as government and ACAS guidance pages to ensure that the general document addressing symptoms and concerns within your workplace practice is kept up-to-date.

 

2. Spotting frequent sickness absence and implementing capability procedures to help identify sufferers

 

In cases where Long COVID symptoms are not so apparent, employers should be aware of staff taking frequent absences.

 

Frequent absences usually trigger sickness absence and capability procedures, which may help to monitor and ensure issues are raised and communicated, however, it is important that Employers approach these concerns with understanding and sensitivity.

 

Should an employee need to take time off work due to long Covid-related sickness, ACAS encourages employers to be supportive by ensuring their work is covered appropriately, regular conversations are had about how best to support the employee moving forward and occupational health referrals are made where necessary.

 

There is clearly a wide range of symptoms and not all employees are affected in the same way, so where employees remain capable to work, it may help to work through policies such as previous sickness absence or capability concerns with some leniency.

 

3. Supportive measures 

 

Employers should also be aware that in certain instances they may need to consider implementing reasonable adjustments such as restricted duties, amended working hours/change in shifts set to a particular date to a phased return to work in order to assist employees who are considered generally capable to return.

 

Employers may also want to think about supportive measures at a more preliminary stage within their regular process such as making some exceptions when considering warning or disciplinary triggers within sickness policies.

 

4. Effective and open communications 

 

Employers should appreciate that Long COVID can affect individuals differently, so it is important for senior staff to understand that they should try to keep communication as open as possible and avoid disregarding or making assumptions about symptoms, the nature of the condition or the extent of the impact on the individual’s health.

 

Of course, the best way an employer can assist staff is to ensure employees affected by Long COVID are comfortable enough and provided with opportunities to raise any health concerns affecting their ability to perform duties. Senior staff should be understanding and exercise a degree of sensitivity in all communications as individuals may be affected differently due to the wide variety of symptoms.

 

If Long COVID health concerns are raised, remember that communication is key, and follow-ups in writing are always helpful to prevent confusion. Employers may wish to explore referrals to occupational health and/or implementing the suggested adjustments above to employee duties in order to assist them in the short-term.

 

5. Employee’s role and responsibility

 

Whilst the duty to review and act is important for the employer, the employer can only assist if there is transparency from both parties. Employers should ensure employees are advised to address any health concerns and symptoms they may be displaying, particularly which affect their ability to perform their duties, with the employer and if required, occupational health. At the same time, they may wish to encourage an informal review or discussion to allow an affected employee to be more comfortable in being transparent from the offset.

 

6. Long Covid and potential tribunal claims 

 

COVID is a relatively new health concern and at present, it is worth noting that it is unclear how Long COVID will influence common areas of dispute in the future.

 

Concerns that immediately come to mind within the employment remit are disability discrimination and health and safety concerns.

 

Under the Equality Act 2010, other than the ‘deemed’ disability, a ‘disability’ is a physical or mental impairment, which has a ‘substantial and long-term’ adverse effect on a person’s ability to carry out normal day-to-day activities. In this context, ‘long term’ means the effects have lasted or is likely to last for at least 12 months.

 

It is not clear just yet how ‘long’ the average individual will be affected by Long COVID, and it will take some time to understand or recognise the magnitude and implications of this condition. What is currently apparent is that the condition can have an affect a person’s day-to-day activities and can last or come and go over several months. The effects of Long COVID could also cause other issues or ‘impairments’, which is important to bear in mind, and employers should focus on adjustments to help alleviate any disadvantage. Employers should remain mindful that treating a person with Long COVID less favourably because of their condition could amount to potential discrimination arising from a disability or disability discrimination claims.

Employers should also consider implications on mental health, and ACAS have provided guidance to assist.

 

7. Steps employers must take to legally safeguard the company and welfare of their employees 

 

Employers are encouraged to regularly review the latest guidance on COVID working practices moving forward, revisit and update their health and safety policies, and complete regular workplace safety reviews such as updated risk assessments. Employers should implement necessary changes (including review of whether certain working practices are working effectively, changes to seating, floorplan, working from home more regularly) in line with the relevant government guidance to help avoid disputes.

 

As the ongoing effects of the pandemic continue to impact our lives, it is essential for employers to ensure that their policies and practices are robust to deal with the still unknown effects of Long COVID in the workplace.