Does Covid-19 render an employee disabled?

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Does Covid-19 render an employee disabled?

As the Covid-19 pandemic continues to rage, doctors and scientists are learning more about the virus and the long-term effects that it can have on its victims. Over the course of the last couple of weeks, news stories have been released outlining the ways in which the virus appears to impact the body once the infection has cleared. Some of the reports are alarming in their detail, referencing lung and heart damage, chronic fatigue, psychological trauma and neurological damage, amongst other things. There are calls for greater awareness about the long-term effects of Covid-19 and support groups for individuals who are suffering in the longer term are being set up.
Employees who contract Covid-19 will need to be absent from work for a period of time, but it seems increasingly likely that there will be a rise in employees who are absent from work in the longer term due to the effects of the virus and who may struggle to return to work to render a full and efficient service. Any case of sickness absence will present issues and considerations for employers and any Covid-19 related absence will be no different however, it may be that as the pandemic rumbles on and we learn more about the longer term effects of the virus that employers need to start thinking about Covid-19 in the context of it being a disability for the purposes of the Equality Act 2010.
Under the Equality Act 2010, someone is considered to be disabled and protected from discrimination if they meet with the definition set out in section 6 of the Equality Act 2010 which says that a person is disabled if:

  • they have a physical or mental impairment
  • that impairment has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities

The definition under section 6 is very wide and covers a broad range of conditions. An individual will have an ‘impairment’ if their physical or mental abilities are reduced in some way compared to most people. An impairment does not have to be a diagnosed medical condition and it does not have to stop an individual from actually doing anything as long as it makes it harder.
In respect of the long-term element of the definition, a ‘long-term effect’ means something that has affected an individual or which is likely to affect them for at least a year. An impairment will still be considered to be long term if the effects are likely to come and go. When it comes to an impairment having a “substantial effect” on an individual’s day-to-day activities this means one that is ‘more than minor or trivial’.
When the reported after effects of Covid-19 are considered then, especially those which are more serious in nature, it is possible that these may be capable of deeming an individual to have a relevant ‘impairment’ for the purposes of the Equality Act 2010 which is both long-term in nature and substantial in its effect. Whilst each individual will suffer the effects of Covid-19 in a different way and whilst some employees who are absent from work with the virus will recover well, employers should start having some regard to the possibility that some employees may fare worse and that actually, their condition may render them eligible to receive protection against discrimination on grounds of disability under the Equality Act 2010.
Employees who do receive protection under the Equality Act 2010 must be treated appropriately and be afforded the benefit of reasonable adjustments where necessary. In the event that you would like to discuss an employer’s obligations in this regard in further detail or any Covid-19 related absence issues which you may be experiencing, then please contact a member of the Employment Team on 01274 864999.

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