Is long COVID a disability?
According to official statistics published on 6 May 2022, an estimated 1.8 million people living in private households in the UK were experiencing self-reported long COVID as of 3 April 2022. Long COVID is described as symptoms persisting for more than four weeks after the first suspected infection that were not explained by something else.
Of those, 67% (1.2 million people) reported that long COVID symptoms adversely affected day-to-day activities; and 19% (346,000 people) reported that their ability to undertake their day-to-day activities had been “limited a lot”. The most common reported symptom was fatigue, followed by shortness of breath, loss of sense of smell and difficulty concentrating.
Is long COVID a disability?
Under the Equality Act 2010, a person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. The effect of an impairment is long term if it has lasted or is likely to last for at least 12 months. An adverse effect is substantial if it is more than minor or trivial.
The Equality and Human Rights Commission (EHRC) tweeted on 7 May 2022 that “without case law or scientific consensus, EHRC does not recommend that ‘long covid’ be treated as a disability”. However, on 9 May 2022, the EHRC issued a statement on long COVID, disability and the Equality Act. It points out that long COVID is not listed in the Equality Act as a condition that is automatically a disability, such as cancer, HIV and multiple sclerosis. It goes on to state that the EHRC cannot say that all cases of long COVID will fall under the definition of disability. However, this does not affect whether long COVID might amount to a disability for any particular individual – it will do so if it has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This will depend on the circumstances and will be a question for an Employment Tribunal to determine.
The answer to the question of whether long COVID is a disability is “possibly” – it depends on the circumstances. This does not give any certainty to employers, which will need to consider on a case-by-case basis what symptoms employees are experiencing and the effect of those symptoms on the employee’s day-to-day life.
The EHRC states that “to support workers affected by ‘long Covid’ and avoid the risk of inadvertent discrimination, we would recommend that employers continue to follow existing guidance when considering reasonable adjustments for disabled people and access to flexible working, based on the circumstances of individual cases.”
If an employer is aware or suspects that one of its employees may have a disability, it is important to seek medical advice. It is also important to consult with an employee in order to reach a reasonable decision in relation to any adjustments required. A failure to do so may lead to a successful claim of disability discrimination.
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Sources of information:
18 May 2022
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