Data from January 2022 estimates that around 1.3 million people in the UK are living with so-called ‘long Covid’ – a range of symptoms that persist for more than four weeks after being infected with coronavirus.

While the Equality and Human Rights Commission (EHRC) has clarified that long Covid isn’t formally recognised as a disability by law, the effects and symptoms caused by the ongoing condition could be considered as a disability if they impair a person’s ability to perform day-to-day tasks. The effects of long Covid – which include ‘brain fog’ severe fatigue and breathing difficulties – can impair employees’ ability to work productively, so employers must consider the condition’s impact on their people, and make suitable accommodations.

Employers have a positive duty to lessen the disadvantages faced by disabled employees under the Equality Act 2010, and this includes making reasonable adjustments to ensure that disability doesn’t impede one’s ability to work. Employers should take effective steps reasonable adjustments for those experiencing the severe effects of long Covid.

Contents

• Providing reasonable adjustments
• Sickness and absence policies
• Return to work interviews
• Consider flexible working
• Summary

Providing reasonable adjustments

It is the employer’s responsibility to make reasonable adjustments to allow employees to be able to carry out their normal duties. This might be introducing a flexible working policy, providing transport to work, or even extended time off or a phased return to work. According to Tina Rahman, Founder of HR Habitat: “We suggest referring individual to occupational health if they believe they are not able to return to work. This provides you a blanket of protection as you will take appropriate action in accordance with clinical advice.

You may want to conduct a ‘job analysis’ to revaluate the employee’s responsibilities to ensure they are fairly spread and manageable. Also, formal discussions on employer support to return to the office should be taking place periodically, with the details being recorded, preferably in your HR system. Again, this gives employers a blanket of protection and transparency. If you conclude that the person is unable to carry out the role – or unable to perform under all reasonable adjustments provided – and you believe all options were exercised with no success, then a capability procedure must be carried out to investigate and determine next steps (such as a dismissal, for example). Without this crucial step, employers risk claims of unfair dismissal. Remember, this will be on the grounds of capability not conduct – a huge factor to consider before taking next steps.”

Employers should take effective steps in line with EHRC recommendations to provide reasonable adjustments for those experiencing the severe effects of long Covid, and to mitigate the risk of facing claims of disability discrimination.

In many cases, the delivery and integration of any necessary reasonable adjustments isn’t an overnight process – this can sometimes take a matter of months, leaving disabled workers at risk of poorer performance and distress if these systems aren’t readily available swiftly,” says Anthony Edwards, partner at Wilsons Solicitors. “Taking effective proactive steps now may minimise the risk of discrimination further down the line.”

Sickness and absence policies

An employee who is off work due to long Covid should be subject to standard rules for sickness absence and will be entitled in the usual sickness pay. Employers must ensure that sickness absence policies are up to date in respect of entitlements, that managers are trained on all aspects and procedures of the policy, and that employees are aware of the policy and their rights and obligations under it.

Normal sick pay provisions will apply for long Covid sickness absence. Employees will therefore receive either company sick pay or statutory sick pay (if eligible). The statutory sick pay weekly rate is currently £96.35, paid for up to 28 weeks. Further information on the eligibility criteria is available on the gov.uk website.

If the employee is too ill to work from home, it should be counted as sickness absence on full pay. In addition, sickness absence due to Covid-19 should not be counted towards any employee’s sickness entitlement. Employees with Covid-19 symptoms should not be expected to undertake work.

Remember to make up-to-date sickness and absence policies available to all employees through your HR software, which you can also use to record and track employee absences.

Return-to-work interviews

Return-to-work interviews should be conducted after any illness, but these interviews are especially important for ongoing conditions such as long Covid. Usually held by a line manager or by the HR team, the interviewer should know their organisation’s absence policy – and any recent changes to it – and be well-versed in relevant employment legislation such as the Equality Act 2010, to mitigate the risk of discrimination.

The person who conducts the return-to-work interview should be fully briefed before the meeting, and understand relevant data such as absence history and trends in the employee’s attendance, and ensure support is available to the employee (if needed).

When carrying out the interview, managers and HR practitioners should:

• Hold the interview in private to make sure anything that is said remains confidential
• Have a return-to-work form available – this ensures you follow the same format for every employee.
• HR software will enable the form to be completed directly by the employee into the HR system
• Make employees feel comfortable. Treat the interview as an informal chat so employees open up to you about how you might be able to support their return to work
• If a paper-based return-to-work form is being used – the employee and manager should sign and date the form so that statements given cannot be disputed later. This is another benefit of using online HR systems to manage the process as an auditable trail can be created and reported on in future
• Make sure all notes are stored securely in line with data protection regulations. Again, another benefit of using a secure HR system to store this information instead of paper-based records is the enhanced security it offers

Consider flexible working

A huge benefit of offering flexible working arrangements is that employees overall take fewer sick days when they’re working remotely. Statistics from the Office for National Statistics (ONS) show that absence due to sickness has declined from 1.9% to 1.8% in 2020, the lowest since records began in 1995.

The pandemic has also nudged organisations to prioritise both the physical and mental health of their people – something that flexible working arrangements often support. There are several options when it comes to flexible working, for both employer and employees, beyond the typical part-time week: compressed hours, where an individual works longer hours over fewer days, and job shares, are both good examples.  Another example is the blended day, in which an employee’s day is divided into slots rather than the traditional 9-5.

If the reasonable adjustments required by an employee suffering from long Covid is to be able to work in a flexible, or hybrid manner, it is the employer’s duty to make these adjustments. Robust HR software – perhaps integrated with a time and attendance system – will help HR teams and managers keep track of adjusted schedules for remote, hybrid and flexible workers.

Summary

Employers should ultimately be treating employees with long Covid as they should any other individual with a long-term physical or mental health condition: with compassion and understanding, and by making reasonable adjustments – such as to working hours or location – that enable the employee to continue in their role. Successfully supporting employees with health problems rests on human relationships, but HR solutions have an important role to play in making sure that people are treated equally and fairly (by providing staff with access to sickness and absence policies, and creating a history of interactions and conversations), and that, thanks to mobile technology, employees are able to work from any location, at any time.

To find out how Ciphr HR can support hybrid and flexible working arrangements, while also tracking employee absences and storing records of absence-related cases, get in touch to arrange a free consultation with one of our experts.