This guidance was developed in conjunction with Birmingham Hospital Saturday Fund (BHSF) Occupational Health provider, Workplace Health Leadership Group N.I. and the latest available published medical advice. It will ensure staff are supported effectively during their recovery. See Appendix A for more information on the Workplace Health Leadership Group N.I. (WHLG N.I.).
What is long covid?
Long covid has no medical definition but is a term given to the condition where people who have already had Covid-19 continue to experience symptoms of the illness, often subsequently testing negative to the presence of the virus.
Having residual symptoms of viral infections is not unusual, for example, having a cough many weeks after a cold. However, long covid is characterised by significant symptoms, such as extreme fatigue and/or shortness of breath, leading to exhaustion after even minor activity, for a considerable period after the initial infection.
Although those who have been treated in hospital are more likely to experience long covid issues, many who experienced mild initial symptoms are also struggling with the condition. It has been estimated that 2% of all people infected have long covid symptoms 90 days after the initial onset of their symptoms.
There is growing evidence that long covid is more likely to occur in individuals who try to ‘soldier on’ and do not take the time to rest and recover. Members should ensure that where they are diagnosed with Covid-19, they take the necessary period of sick leave rather than attempt to work through the illness.
Long covid symptoms can include:
- shortness of breath.
- joint pain.
- chest pain.
- loss of taste/smell.
These can be debilitating and have a significant effect on an individual’s ability to perform day-to-day tasks. The symptoms can also vary on a day-to-day basis.
This is a new disorder, and the impacts and effects are still largely unknown, but it is clear that long covid exists.
The fact that long covid has no medical definition is not a determining factor for the purposes of defining disability under the Disability Discrimination Act (NI) 1995 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 Disability Discrimination Act 1995 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 Disability Discrimination Act 1995 may exist even for staff who contracted covid 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.
- 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 may be challenged.
- 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.
The legal definition of disability
A member will satisfy the test for disability set out in the Disability Discrimination Act 1995if 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 NI Regional Office for assistance, as a medical report normally comes with a fee and a request requires skilled drafting.
What NEU expect employers to do?
NEU would expect employers to take a sympathetic approach to employees suffering from long covid, particularly where this leaves them unable to work.
Sick pay should apply as normal, and an occupational health assessment should be undertaken in order to ascertain whether any reasonable adjustments can be applied to assist a return to work. Employers will further need to risk assess any return to the workplace to ensure that it is safe for the individual.
As with any long-term illness, members must not be discriminated against due to suffering from long covid and any absence procedures enacted must be applied fairly and consistently. Employers dismissing the condition as ‘not real’ or ‘in someone’s head’ is unacceptable and members experiencing this reaction should contact the NEU Northern Ireland Office for assistance.
What should members do?
Any member who thinks they may be suffering from long covid should seek medical advice from their GP in the first instance.
If your condition is severe enough to qualify as substantial, although there is no requirement to inform your employer, particularly if you are attending the workplace, the NEU advises that you declare it in order to obtain protection from discrimination and so that your employer is required to consider reasonable adjustments to assist your attendance.
If you are not at work, your employer should be keeping in touch with you, but not pressurising you to return or send in work. An occupational health assessment may be useful, and you should consider requesting one.
If your employer has commenced action against you, under their absence management procedure, you should request a copy of the procedure/policy if you have not already been given one and contact the NEU Northern Ireland office for further advice and guidance.
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, 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.
- 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 symptoms – The protections available to disabled workers under the Disability Discrimination Act 1995 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 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 as set out by Department of Education NI (DENI) regulations 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.
- Other sources of advice and support include Disability Action (see Work | Disability Action Northern Ireland) and the NI Direct website (see Coronavirus (COVID-19) | nidirect )
- 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. 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 be applied – where that teachers who are made ill by a contagious or infectious disease in the course of their employment will receive up to six months leave and full pay. Such absence will not be counted against the teacher’s entitlement to standard sick leave and pay. If the teacher is still not fit to return to work at the end of six months, the employer can either extend the period or transfer the teacher to their standard sick pay entitlement under the BB. Similar entitlements exist for support staff under JNC Schemes.
- 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.
- 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.
Contact the NEU Northern Ireland office for further advice and guidance.