What to do if an employee has Long COVID and is unable to work or keeps having time off?

We’re told that Coronavirus CoVid-19 not only causes problems when you have it, but can cause a multitude of symptoms months later. Known as Long Covid, it’s becoming a plague of malaise for workers throughout the country and it’s impacting a lot of businesses. The Office for National Statistics has estimated that over one million people have reported experiencing long COVID.

But it’s hard to tell whether someone is genuinely ill or just trying it on, so how should yours small business deal with someone who is off sick or keeps having days off because of Long Covid?

NHS advice is that long COVID symptoms can include:

  • extreme tiredness (fatigue)
  • shortness of breath
  • chest pain or tightness
  • problems with memory and concentration (“brain fog”)
  • difficulty sleeping (insomnia)
  • heart palpitations
  • dizziness
  • pins and needles
  • joint pain
  • depression and anxiety
  • tinnitus, earaches
  • feeling sick, diarrhoea, stomach aches, loss of appetite
  • a high temperature, cough, headaches, sore throat, changes to sense of smell or taste
  • rashes

Which means it’s really quite easy to get a GP to diagnose and be signed off as unfit for work. The symptoms are very similar to lots of illness – stress for instance – and so an employee who is just not feeling it could easily be diagnosed with long Covid. I’m not saying people aren’t genuine, don’t get me wrong, but such a diagnosis gives people an explanation – and for some an excuse. 

But as a small business employing staff, we all know that sick leave is costly particularly if it’s over an extended period of time. So how should you deal with someone who has long Covid?

ACAS have just produced a short guide to it, but it’s not a huge amount of help really. In short, long Covid should be treated as any other illness and, while ACAS say you don’t need to spend time deciding whether it is a “disability” in law, you should in effect act as it were and look to make reasonable adjustments to an employees work. 

I know from experience that most small businesses wouldn’t do that – you want a worker who is fit, able and can actually do the job and if not, you’ll get someone else in – right?

Right, well ok that’s fine, but if you want to avoid any kind of employment tribunal claim, then it is probably best we at least try to be compliant. 

The first thing you should do is sit down with the employee to discuss the impacts and try to get from them what they think they can and can’t do. However, they say that Employers should be aware that the effects of long COVID can “come and go”. On some days the person might seem well, but on others their symptoms can be worse and they might need to be off work again. Again, that makes it tricky to deal with rather than someone who takes a month off sick. 

ACAS’s guide suggests that you could discuss:

  • getting an occupational health assessment
  • making changes to the workplace or to how the employee works (‘reasonable adjustments’), such as different working hours
  • a phased return to work
  • what they want to tell others at work about their illness

However, in my experience small businesses won’t do this. If you don’t want to, and are happy to take a risk, then you should probably consider a capability procedure rather than just sacking someone.

If you don’t have a capability procedure, then it would be a good idea to get one in place. But in short, the whole idea is to help the employee be able to do the job NOT a way to dismiss them. However, if they still can’t do it after the help, changes or whatever, then dismissal is an option. 

Sometimes called performance reviews or performance management, capability processes are intended to identify ways in which the employer can support the employee to do their job or make changes to the role. 

To avoid any claims for unfair dismissal, an employer should follow a fair and reasonable process the result of which ought not be pre-determined.

It’s a tricky one, mind, as experience shows me that getting such processes and dismissal wrong lead to tribunal claims. 

Another option would be to pay the employee off, by way of a settlement agreement, which terminates their employment with compensation. 

Whichever way you look at it, you may need expert advice from a qualified and experienced HR provider or a business employment lawyer like me.

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