A caretaker working in Scotland got COVID-19 in November 2020. After his initial illness, he continued to experience effects of the disease in fits and starts, struggling to return to work at full capacity. The caretaker had long COVID-19, and his case in front of a Scottish employment tribunal is one of the first to confirm that long COVID-19 might be considered a disability that is protected under the U.K.’s Equality Act 2010.
The Equality Act and Long COVID-19
There are three considerations that the Equality Act 2010 uses to determine if a condition is a protected disability:
- There must be a physical or mental impairment.
- The disability lasts for longer than 12 months.
- The disability causes a substantial impact on one’s day-to-day activities.
While not everyone’s experience of long COVID-19 qualifies them under these requirements, some people’s circumstances do. The caretaker’s tribunal decision took into account that long COVID-19 symptoms can fluctuate over time, still qualifying the caretaker as having a disability that lasted at least 12 months.
“We’re very keen to work with employers, to help them to understand that in fact, in many cases, long COVID will make the worker a disabled person under the Equality Act 2010,” said Deirdre Costigan, national officer at UNISON, the U.K.’s largest public service union, headquartered in London.
Whether long COVID-19 can be consistently covered by the Equality Act is unclear, because there is such a wide variety of symptoms and the disease is still new and understudied. “There have been calls for long COVID to be added to the legislation as a deemed disability, but the difficulty, the resistance with that is long COVID is impacting different people in different ways,” said Julie Temple, an attorney with Birkett Long in Essex, England.
How Employers Should React to Long COVID-19
Convincing employers to make adjustments for employees with long COVID-19 isn’t always straightforward.
“Sometimes employers don’t believe something unless it’s been tested in court,” Costigan said. “So the fact that in this recent case the tribunal accepted that the individual was a disabled person due to their long COVID was a really positive result.”
While some employers might require more legislative encouragement to accommodate workers with long COVID-19, many others are trying to adapt to the disability. “Employers are becoming more aware of [long COVID-19], and some are very aware of what their obligations are and will do their very best to accommodate individuals and try and keep them within the business,” Temple said.
No Enforcement Mechanism
There isn’t an effective enforcement mechanism for the Equality Act 2010, and employment tribunals are backed up by a year or two. Also, tribunal decisions are not binding, though appeal decisions are.
“I would encourage employees and employers to try to work together. … It’s perhaps easier for employees, in some industries and in some roles, to work from home, and to therefore minimize the impact that long COVID might have had,” Temple said.
Still, the employment tribunal decision involving the caretaker is already paving the way for future cases that will take long COVID-19 into account. “There will be more case law on this,” Costigan said. “I think that will make it a bit easier for union reps to be able to argue that their members with long COVID are disabled.”
Katie Nadworny is a freelance writer in Istanbul.