The Equality and Human Rights Commission recently issued a confusing statement suggesting that long Covid should not be treated as a disability. This caused alarm among Covid support groups and others. Although the EHRC is correct that it is not one of the conditions which is automatically regarded as a disability (such as cancer, HIV or multiple sclerosis), employers should certainly not assume that long Covid sufferers are not disabled. As with any medical condition, it's a fact-sensitive analysis to assess whether the individual's symptoms meet the threshold in the Equality Act.
The Equality Act definition of disability requires:
- a physical or mental impairment; and
- that the impairment has a substantial and long-term adverse effect on the individual's ability to carry out normal day-to-day activities.
"Long-term" means that it must have had the adverse effect for 12 months, or be expected to have the effect for at least 12 months.
In practice, this is not a demanding threshold for employees to meet. The common-reported symptoms of long Covid (fatigue, breathlessness, brain fog, insomnia) could quite readily meet that test if they had lasted or were expected to last for 12 months. It's not surprising that the EHRC had to issue a clarification of their initial statement.
Often, when faced with an employee with a long-term medical condition, employers don't have enough information to establish whether the employee is likely to be disabled for legal purposes. This lack of information may be particularly acute in long Covid cases, since the condition has only been recognised for a relatively short period of time and medical experts are still gathering evidence about prognosis and treatments. In many cases, the most sensible approach for employers is to assume that an employee with a significant health condition may be disabled under the Equality Act and act accordingly - including requesting appropriate and up to date medical advice, consulting with the employee and making reasonable adjustments to reduce or eliminate disadvantages they may suffer in the workplace. Doing so is the best way to mitigate the risk of claims for disability discrimination, constructive unfair dismissal and unfair dismissal (if the individual's employment is ultimately terminated).