What is long covid?
The National Institute for Health and Care Excellence (NICE) describes long covid as the “signs and symptoms that develop during or following an infection consistent with Covid-19, continue for more than 12 weeks and are not explained by an alternative diagnosis” (NICE guidelines on long covid – the BMJ). Long covid encompasses a diverse range of symptoms including breathlessness, chronic fatigue, muscle pains, brain ‘fog’, chest pains, persistent cough, skin rashes, diarrhoea and even strokes and heart failure. It should be noted that the NICE medical definition is not a determining factor for the purposes of defining disability under the Equality Act as there is no need for a formal medical diagnosis to identify an impairment.
Summary of the NEU’s position on long covid
- It must be decided on a case-by-case basis whether long covid falls within the meaning of ‘disability’ under the Equality Act 2010 and therefore attracts legal protection.
- Staff should make their employer aware of their symptoms at the earliest opportunity and in writing.
- Employers have an anticipatory duty under the Public Sector Equality Duty (PSED) to remove barriers to the inclusion of disabled staff where it is proportionate to do so. This may mean anticipating the needs of staff with long covid before issues arise. Management should be consulting staff now, if they haven’t done so already, about what those needs may be and how they may be met.
- Furthermore, for needs that may be difficult to anticipate, the duty to make reasonable adjustments is triggered the moment a disabled worker is placed at a disadvantage in comparison to other staff. The duty to make reasonable adjustments requires employers to take reasonable steps to remove the disadvantage complained of.
- Protection under the Equality Act 2010 may exist even for staff who contracted Covid-19 other than at work.
- However, additional contractual rights, such as those which exist for staff subject to injury or disease in the course of their employment, may attach to staff who contracted long covid at work.
- Where the Burgundy and Green Books apply for reasons of contractual sick pay, and for a possible personal injury negligence claim, reasonable evidence is necessary to indicate that the disease was caused by occupational exposure. For personal injury claims it is also necessary to show that the employer was at fault, usually in this context by failure to act in accordance with Government guidance on safety measures including risk assessments. Whilst "absolute " proof is unlikely to be available the union will be assertive, where justified, in arguing that patterns of virus outbreak among the school community and departures from safety requirements are strong evidence of virus being spread by employers' failings. The wider context has included governmental requirements that schools and colleges remain open when other workplaces have closed and governmental recognition that schools and colleges are vectors for the transmission of the disease
- Staff who contracted long covid at work because the employer failed to follow Government/NHS guidance re. shielding/isolation should request full-pay for more than six months, as a matter of course.
- Disciplinary action for long covid related sickness absences may be met with claims of discrimination arising from disability.
- Similarly, disciplinary action arising from behavioural changes or misconduct caused by stress that arises from the effects of Covid-19 may be challenged.
- No employer should move to dismiss an employee on grounds of capability without first obtaining medical evidence from an approved medical practitioner.
- Early retirement for staff unable to continue in work should be considered as a last resort, once reasonable adjustments have been made and only with the consent of the staff member concerned.
- Members who have an extreme reaction to the Covid-19 vaccine and develop conditions or experience the worsening of underlying conditions as a result should receive the same support as members with suspected or confirmed long covid.
The legal definition of disability
A member will satisfy the test for disability set out in the Equality Act 2010 if they can show that they have:
- A physical or mental impairment (it doesn’t have to be clinically well recognised or be medically diagnosed)
- Which is substantial (i.e. has a more than minor or trivial impact on work and personal life)
- Long-term (i.e. has lasted or is likely to last for at least a year, or is likely to come and go, or is likely to affect the member for the rest of their life); and
- Has an adverse effect on their ability to carry out normal day to day activities (the condition doesn’t have to stop the member from carrying out day to day activities – it is enough that the condition makes the activities harder to carry out. The effect on day-to-day activities doesn’t have to be substantial if the member’s condition is likely to get progressively worse. And finally, if the impact on day-to-day activities is negligible because of medication, the condition is treated as having a substantial effect in any event).
Reps and lay officers should not seek, in the absence of medical evidence, to determine whether a member’s symptoms are more likely than not to fall within the above definition. A report from the member’s GP and/or consultant physician should first be sought. Reps and lay officers should ask the Wales/regional office for assistance, as a medical report normally comes with a fee and a request requires skilled drafting.
What reps and officers should do in anticipation of long covid casework
- Raise awareness - Members may not be aware that they are suffering the effects of long covid, perhaps because they were never diagnosed with Covid-19, so do some awareness raising with members by speaking to them about the possible effects of long covid.
- Get your records in order - Ensure you have recorded the dates on which incidents of Covid 19 infections arose at your school/college; whether they resulted in whole school closures or the isolation of bubbles; which bubbles were isolated and when. Also request copies of any reports by the employer to RIDDOR. For detailed guidance on RIDDOR reporting, refer to the NEU document ‘Accidents, injuries, diseases and dangerous occurrences at school.’
- Remind employers of their public sector equality duty – Staff with long covid symptoms may require a phased return to work, flexible working arrangements, altered duties and responsibilities, disability leave, time off for medical appointments, dedicated support staff, auxiliary aids and physical adjustments to the workplace. Encourage employers to consider whether arrangements could be made in advance to facilitate these adjustments e.g. consider whether the school/college’s finances would support the appointment of an additional teacher or teaching assistant, even if it can only be done on a temporary basis.
What advice reps should give members who believe they have long covid
Members may be advised as follows:-
- Inform your employer of your Covid-19 symptoms – The protections available to disabled workers under the Equality Act 2010 are not engaged unless the employer has actual or implied knowledge of the member’s condition. Members should notify their employers in writing to avoid arguments later down the line of what the employer knew and when.
- Ask for a referral to occupational health – Employers are required under The Education (Health Standards)(England) Regulations 2003 (equivalent provisions exist in Wales), to make a referral to a qualified medical practitioner where it appears to the employer that a person may no longer have the health and physical capacity to teach. Employers are unlikely to grant the enhanced sick pay entitlements available to staff under the Burgundy and Green Books without a report from the occupational health practitioner, or some other ‘approved medical practitioner’, confirming that sickness absence is probably due to long covid contracted directly in the course of employment.
- Contact the Citizens Advice Bureau (CAB) for benefits advice – The CAB may be able to advise members whose entitlement to occupational sick leave and pay has been exhausted. The member’s sick leave and pay entitlements should be revisited once they receive a diagnosis and/or prognosis from a medical practitioner confirming long covid.
- Prepare for the possibility of dismissal – it is never an easy or pleasant subject to broach, but members should be warned as early as possible of the employer’s right to seek dismissal where the member is unable to return to their duties after a reasonable amount of time has lapsed. Greater flexibility and sympathy shown to staff during the pandemic is likely to end as employers seek a return to “normal” conditions. Many employees believe, wrongly, that an employer cannot dismiss them if they are disabled. Approach the issue sensitively, but ask the member to think in advance about what they would want from the employer in the worst-case scenario (.e.g. agreed references, transfer to a more flexible role etc.).
What requests should reps and lay officers make of employers in respect of members with long covid?
- Where relevant, ask for the sick pay provisions under the Burgundy and Green Books to be applied – Section 4, para 10 of the BB provides that teachers who are made ill by a contagious or infectious disease in the course of their employment may be absent on full pay for as long as an approved medical practitioner attests that they are more likely than not to be suffering the effects of that illness (i.e. long covid in this instance). Such absence will not be counted against the teacher’s entitlement to standard sick leave and pay. Similar entitlements exist for support staff under the Green Book Scheme (see para. 10.2).
- Where the Burgundy and Green Books do not apply – If the member’s contract and/or particulars of employment do not make their sick leave and pay entitlements clear, e.g. because they work in an academy or private school that has not adopted the BB and/or GB, seek to clarify the member’s entitlements by letter/email.
- Ask for an updated risk assessment – A risk assessment should be carried out (by Access to Work where possible) once the member’s GP issues a fit note, taking the recommendations of occupational health (if any) and the member’s wishes into account,
- Ask for a return to work or wellbeing meeting – A return to work or wellbeing meeting should be held once the member’s GP issues a fit note indicating that the member is fit to return to work. The member should be offered trade union representation at the meeting. Either before or during the meeting ask what, if any, modifications will be made to the member’s workload and/or the way they work (e.g. phased return) and for roughly how long.
- Ask for performance management arrangements to be suspended – Performance management arrangements should be suspended for at least a term after the member’s return to work. Encourage the Head teacher to adopt the Union’s Attendance Management Model policy. This calls for all performance management to be suspended for at least a term when a staff member returns to work, but allows for the period to be extended if the member requires additional support. Performance management arrangements should also be adjusted for members who are currently struggling in work with long covid and are performing below par as a consequence.
- Insist on the suspension of sickness absence triggers – The member should not be placed on sickness absence management procedures on their return to work. To do so may subject them to unfavourable treatment for a reason related to their disability and may amount to harassment. It is the member’s sickness absence going forward, and not their past absences which should be considered.
- Ask for disability leave – If the member requires ongoing treatment, ask for disability leave for the days they spend receiving treatment and recuperating. They should also receive disability leave for all absences related to their disability/impairment, so that they do not inadvertently trigger sickness absence management procedures for absences the employer knows cannot be avoided and may be necessary to maintain the member’s health and safety, as well as the health and safety of pupils and staff.
- Ask for a return to work or wellbeing plan – Once the OH report and risk assessment are complete, a return to work plan should be prepared setting out the reasonable adjustments to be made and when. The member’s agreement to the plan should be sought. There should also be a commitment to review the plan, initially after a term and then every three months thereafter until the member’s health no longer requires monitoring. The member should be given a date on which to return to work, even if the plan is not agreed.