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Long Covid – Return to Work Guidance

The HSE has published a report on Long Covid which gives helpful guidance to employers and provides some return to work strategies that should be adopted.  The report is based on evidence as of 8 March 2021 and can be accessed here.

What is Long Covid?
The report adopts the National Institute for Health and Care Excellence (NICE) definition of Long Covid: symptoms that continue or develop after acute Covid-19, this includes both ongoing Covid symptoms (symptoms from 4 to 12 weeks) and post-Covid-19-syndrome (symptoms past 12 weeks).

Sufferers complain of fatigue, difficulty concentrating and memory loss, depression, anxiety, and PTSD as well as changes in taste and smell. Symptoms can be sufficiently serious so as to affect someone’s ability to work.

The report estimates that 5 to 36% of patients still experience symptoms 4 to 12 weeks after their infection, and 5 to 15% experience symptoms lasting longer than 12 weeks.  The report notes that up to 70% of people with Long Covid are unable to work at all or to their previous capacity, even seven months post-infection.  Further, it notes that sufferers perceive a stigma from colleagues after such a diagnosis.

Managing the return to work
Statistically, the probability of returning to work after three months of sick leave is approximately 50%.  Many workers on sick leave for more than six weeks seek help returning to work.

The report notes that employers can draw on the lessons learned from the research into other conditions, such as Myalgic Encephalomyelitis/Chronic Fatigue Syndrome (ME/CFS) which share some similar symptoms with Long Covid.  NICE is reviewing its guidance on the management of ME/CFS, as medical options for these conditions continue to evolve.

The report highlights that, whilst working remotely has enabled individuals to take breaks as required and has removed the debilitating commuting to work, some of those who returned to their job suffered relapses triggered by the exertion and stress of work.

So, employers could use the following steps to enable individuals with Long Covid to return to work:

—  phased return

—  working reduced hours

—  flexitime

—  working from home

—  changing to a role with lower physical or mental strain

—  introduce fatigue management strategies

—  adapt work tasks

Suggested guidelines on return to work
The report provides the following guidelines, which are in line with the existing guidance from the Faculty of Occupational Medicine and previously published comments from the HSE:

—  Health professionals should be involved as soon as possible with return to work advice and in the reintegration process.

—  Early contact between employer and the absent employee, ideally within the first two weeks of absence is recommended.

—  A “progressive, adaptive, and appropriate” return to work is the primary goal since an individual “does not need to be 100% fit to return to work”.  To maximise job retention, occupational health professionals should play an active role in the return to work.

—  Working is generally good for health and this also applies for workers suffering from Long Covid.  Return to (adapted) work needs to be planned and can be an effective part of the rehabilitation.

—  Stakeholders should seek to develop a close and trustful relationship with occupational health professionals to initiate a return to work

—  Work should be adequately and appropriately adapted where possible and the worker should be actively involved in (re)designing his/her work.   Employers need to fully understand the job, its component tasks, and the physical and mental demands of the job.

—  A return to work plan for individuals with Long Covid could include: a phased return, flexible work, time off for rehabilitation and medical appointments, fatigue management strategies and adaptation of work tasks.

Dealing with employment law risks
In addition, employers need to be alive to the risks associated with possible disability discrimination claims.

Under the Equality Act 2010, Long Covid will qualify as a disability if a worker can show that it has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities.  Long-term means it has lasted or is likely to last at least 12 months.

Given that Long Covid is a relatively new condition, we do not yet have any reported cases on whether or not it qualifies as a disability.  However, in due course, it is likely that Long Covid will meet this definition in some cases.

Employers dealing with Long Covid will need to make reasonable adjustments in the workplace (for example, by taking the steps set out above) to minimise the risk of potential claims.  They will also need to ensure proportionate and legitimate treatment of workers with Long Covid to minimise the risk of (a) discrimination arising from a disability and (b) indirect discrimination claims.

Policies and procedures, including absence management policies, will need to be carefully reviewed and should deal robustly with any employees who are identified as falsely claiming to be suffering from Long Covid.  Training may also be appropriate for managers dealing with the effects of Long Covid.

Next steps
Whilst the report provides helpful guidance, we suggest that you take specialist advice before developing and implementing a return to work strategy for any individual employee suffering from Long Covid.

Our Employment and Regulatory teams are here to help.

This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email: mailinglists@greenwoods.co.uk




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      By completing and submitting this form, you consent to Greenwoods Legal LLP processing your personal data to provide you with the email update services you have selected and any other materials and information about our services that Greenwoods Legal LLP reasonably believes will be of interest to you. You are free to withdraw your consent at any time by emailing mailinglists@greenwoods.co.uk