Can long COVID constitute a disability under the Equality Act 2010?

The symptoms and severity of COVID-19 vary from person to person. Some people who contract COVID-19 suffer no symptoms at all; many feel better in a few days or weeks; and in the majority of cases, people make a full recovery within 12 weeks. However, it is now accepted that for some, COVID-19 can cause symptoms that last much longer.

The symptoms of ‘long COVID’ are numerous and can include severe ailments such as extreme tiredness, joint pain, depression and anxiety. This has resulted in some employers considering whether long COVID should be treated as a disability for which organisations be required to make reasonable adjustments.

Contributing to this conversation, the Equality and Human Rights Commission (EHRC) issued a tweet earlier this month stating: “Discussions continue on whether ‘long COVID’ symptoms constitute a disability. Without case law or scientific consensus, EHRC does not recommend that ‘long covid’ be treated as a disability… Employers should continue to follow existing reasonable adjustment guidance based on individual circumstances”.

However, this led to the EHRC receiving some online and press criticism. The EHRC consequently issued a fuller statement explaining its position. It referred to the current provisions of the Equality Act 2010 (the Act) and noted that, depending on the circumstances, long COVID might amount to a disability for a particular individual.

What does the Equality Act 2010 say about disability and how might it apply to long COVID?

The Act focusses on the circumstances of the individual person and how they are affected.

Section 6 defines a disability as a physical or mental impairment that has a long-term and substantial adverse effect on an individual’s ability to carry out normal day-to-day activities. The Act also categorises certain medical conditions, such as cancer, automatically as a disability.

The effect of an impairment is ‘long-term’ if it has, or is likely to last, for at least 12 months; or is likely to last for the rest of that person’s life. An impairment has a ‘substantial adverse effect’ if such effect is anything more than minor or trivial.

Therefore, where an employee suffers a symptom of long COVID that is long-term and has a substantial adverse effect on their ability to carry out normal day-to-day activities, this may, as the EHRC suggests, lead to long COVID amounting to a disability for that person.

Where an employee is considered as having a disability, the employer has a duty to make reasonable adjustments to reduce any disadvantage to them in the course of their work. What is reasonable depends on the circumstances, but could be something like allowing flexible hours or more frequent breaks if an employee suffers fatigue as a result of a disability.

The Act does allow for expansion of the categories of prescribed disabilities. However, unless or until there is further case law and/or scientific exploration on the impact of the symptoms, it seems unlikely that long COVID will be formally recognised in this way, particularly given the list of prescribed disabilities is limited in its scope.

Employers should continue to consider the individual circumstances of their employees with reference to the provisions of the Equality Act when considering if reasonable adjustments are necessary. Even in cases where it seems unlikely that the test for disability status will be met, Acas (the Advisory, Conciliation and Arbitration Service) recommends that employers focus on reasonable adjustments they can make, rather than trying to ascertain if an employee’s condition is a disability in law.

If you would like to discuss any disability related adjustment that an employee is seeking, or otherwise how to handle disability or medical conditions in the workplace, please contact one of our employment team.