Can long COVID be deemed to be a disability?

The Equality and Human Rights Commission has issued a statement in relation to long COVID and whether it could constitute a disability under the Equality Act’s definition.

This comes as the Office for National Statistics (ONS) has estimated that '1.8 million people living in private households in the UK (2.8% of the population) were experiencing self-reported long COVID infection'.

At present, there is no universal definition of what long COVID is. The ONS classify it as 'symptoms persisting more than four weeks after the first suspected coronavirus episode that are not explained by something else.'

They have also reported that 'long COVID symptoms adversely affected the day-to-day activities of 1.2 million people, with 346,000 reporting that their ability to undertake their day-to-day activities had been "limited a lot".' The most common symptoms include extreme tiredness, shortness of breath, chest pain, insomnia and brain fog.

As employers will be aware, to consider a condition to be a disability, the condition in question must have a substantial adverse effect on an individual’s daily life and this must be more than a minor effect. Considering the increase in the number of long COVID cases being reported, it is anticipated that an increased number of claimants will be seeking to rely on it when pursuing a disability discrimination claim.

We would encourage employers to continue to follow their absence management procedures when dealing with employees who suffer from long COVID. Unless there is clear evidence to the contrary, good practice is to act as if someone who has long COVID is disabled and try to obtain as much information from the individual, and occupational health, as possible.

In addition, be wary of disciplinary and capability action if someone is a long COVID sufferer. We would also highlight that for those with long COVID, the management of absence should be no different to other forms of long-term sickness absence.