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Is long COVID a disability?

For some people, COVID-19 can cause symptoms that last weeks or months after the infection has gone. This is called post-COVID-19 syndrome or, more commonly, ‘long COVID’. Little is known about long COVID at the moment, but with increasing numbers of people suffering from this condition, we are becoming more aware of how it manifests.

Long COVID has a wide range of differing symptoms of varying degrees of severity: from breathlessness and ‘brain fog’ to heart failure and strokes. Naturally, this has led to speculation as to whether this condition could be defined as a disability under section 6 of the Equality Act 2010 (Act)?

Section 6 of the Act states:

“(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

Although long COVID has no formal medical definition, this is neither determinative nor of great importance for the purposes of the first limb of the test in the Act. There is, in fact, no need for a proper diagnosis, only for the existence of an ‘impairment’ (whether physical or mental) to be identifiable.

When assessing if the second limb of the test is made out, an employment tribunal will consider a person’s ability to carry out normal day to day activities against that person’s ability if they did not have the impairment. It is also important to note that if someone has been suffering from long COVID, it may put extra strain on their mental health, which could impact their daily activities, and this impact may be sufficiently serious to be considered ‘substantial’.

Any proper assessment of whether a person has a disability is likely to involve input from specialists and occupational health practitioners. Enquiries will also need to be made to try and determine how long it may last for. Simply analysing a person’s health over a short period of time will not be enough; many long COVID sufferers have periods where they have no symptoms followed by suddenly relapses.

In view of the seriousness of some of the common symptoms of long COVID, it seems likely that any person suffering from it would be able to satisfy the requirements of section 6 of the Act.

Employers may consider it prudent to arrange for their employees and managers to undertake training to ensure they know how to deal with people who are suffering from both COVID-19 and long COVID. This would increase the likelihood that: these matters are handled sensitively and appropriately; and employees are aware of the support which is available to them and the correct procedures to be followed. This, in turn, reduces the likelihood of disputes escalating to employment tribunal litigation.

If you have any questions about the implications of employees suffering from long COVID, please email or call our Employment Law team today on 0113 207 0000.

 

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Paul Kelly

Partner and Head of Employment
Employment Law
PKelly@LawBlacks.com
0113 227 9249
@PaulLawBlacks
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Paul Kelly Blacks Solicitors LLP