Dealing with Long-Covid – a guide to employers – Part 1 of 5

Scenario 1: Employee returns after coronavirus but has persistent short-term absences

Martin has had coronavirus and has returned to work. While he feels okay most days, he has lingering symptoms, including shortness of breath, fatigue, and achiness. These symptoms have led to a significant number of short periods of sickness absence (one or two days each time), triggering the employer's short-term sickness absence formal review process. The employer uses the Bradford factor to manage absence and so his persistent short spells have triggered a meeting with his manager.

What the employer should do: -

Dealing with short-term absence

An absence management policy generally involves a certain number of absences triggering a series of warnings about the employee's attendance, eventually leading to dismissal (if the absences continue). In such cases the reason for the dismissal will generally fall under the category of "some other substantial reason". This is because the employee is fit for work at the time of the dismissal, but their levels of absence mean that their attendance is not sufficiently reliable for the employer's needs.

What levels of absence justify the move to dismissal will of course depend on a number of circumstances e.g. the nature of the work, size of the employer and the impact of the employee's absence either on the employer's ability to deliver a service and or commercial performance.

Underlying medical conditions

This approach assumes however that the absences are not linked by an underlying medical condition. Where, as in this case, there is reason to believe that the absences have an underlying cause, then a different approach is needed. Essentially the employer needs to approach the problem on the same basis as it deals with long-term absence.

This means investigating the true medical position either through contact with the employee's doctors or through the use of an occupational health service. More specialist medical advice may also need to be sought where the opinion of a GP or OH practitioner is inconclusive. 

The essential question the employer is seeking to answer through such investigations is what level of absence the employee can be expected to have in the future and for how long this situation is likely to last. The employer should also explore what steps can be taken that might reduce the employee's absence levels e.g. reasonable adjustments;

Disability and reasonable adjustments

One additional point to bear in mind is whether or not Martin has a disability within the meaning of the Equality Act 2010.

The key question will be whether his long-COVID symptom are likely to last for a year or more. This of course depends on a medical assessment, and it may well be that, as yet, there is insufficient statistics to reach a view on this. The employer would be well advised however, to act on the assumption that Martin’s condition is a disability and seek to make reasonable adjustments accordingly.

For example, depending on the nature of Martin’s work it might be possible to allow him to work flexibility e.g. from home on days when he is feeling short of breath, so that he does not have to endure a commute that may exacerbate his fatigue.  Shortened hours or amendment to his duties could also be rearranged to accommodate his symptoms when he is having a difficult day.

The employer needs to weigh up the risk and if serious consideration has been given to alternatives and the medical prognosis in that his absence is likely to continue at a seriously disruptive level for a considerable period of time, then it may still be fair to dismiss on the basis of his capability and demonstrate that any unfavourable treatment arising from his disability is justified as a proportionate means of achieving a legitimate aim

The fact that his illness arises from COVID does not require any special treatment.

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