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As reports of islanders suffering long covid rise, with a dedicated clinic set up at the hospital this week, local lawyers examine whether it should be considered a disability or not.
BCR Law Solicitor Nour Belal, and Partner Advocate Jeremy Heywood, had this to say...
There are increasing reports of people suffering with ‘long covid’. The Office of National Statistics has reported that, in the UK, the groups most likely to suffer from long covid are: people aged 35 – 69; women; disabled people; and those working in health or social care. Employers should review their policies and procedures to ensure they are appropriate to meet any potential consequences of long covid on their workforce.
It is important for employers and employees to understand what impact the condition may have on their respective rights and obligations under current employment law. The impact will be most significant if ‘long covid’ is considered to be a ‘disability’ under the terms of the Discrimination (Disability) (Jersey) Regulations 2018 (the Regulations). Obviously, disability-related discrimination is prohibited under the Regulations.
As matters stand, a person has a disability for the purposes of the Regulations if that person has one or more long-term physical, mental, intellectual or sensory impairments which can adversely affect a person’s ability to engage or participate in any activity. “Long-term” means the impairment: (1) has lasted, or is expected to last, for not less than 6 months; or (2) is expected to last until the end of the person’s life.
Whether or not long covid is a disability for the purposes of the Regulations will largely depend on the individual circumstances of the employee concerned and how long covid impacts upon them. If long covid is adversely affecting an employee’s day-to-day life, and if the effects have lasted for six months or longer, then pursuant to the Regulations it is likely that they would be considered to have a disability. This will certainly not be the case for all sufferers of long covid given the range of symptoms and the differing periods over which individuals are symptomatic. The Regulations do provide a legal basis for the potential classification of long covid as a disability in individual cases.
In the event that an employee is able to satisfy the disability criteria then an employer will be required to make adjustments to facilitate an employee returning to their duties. Any failure to do so could constitute unlawful discrimination. Putting in place reasonable adjustments (such as flexible working) can support an employee to carry on working as normal. An employer should not unilaterally change an employee’s working conditions; any changes should be agreed by mutual consent. If necessary, employers can refer to medical and occupational health professionals for further guidance.
As well as disability, employers must to be careful to avoid other types of discrimination when considering long covid. Employers should be alert to potential discrimination (whether direct or indirect) on the grounds of sex, age, race and disability.
The complex nature of long covid may give rise to a number employment law and policy issues which will need to be properly considered and handled sensitively. Islanders that need such advice are encouraged to seek legal advice.
In a previous episode of the Bailiwick Podcast, Express spoke to 17-year-old Aliyah Buesnel about the lasting impact of long covid...
