A caretaker working in Scotland fell ill with COVID-19 in November 2020. After his initial illness, he continued to suffer intermittently from the effects of the disease and struggled to return to work at full capacity. The caretaker has long had COVID-19 and his case in a Scottish Labor Court is one of the first to confirm long COVID-19 could be seen as a disability protected by the UK’s Equality Act 2010.
The Equality Act and Long COVID-19
There are three considerations that the Equality Act 2010 uses to determine whether a medical condition is a protected disability:
- There must be a physical or mental impairment.
- The disability lasts longer than 12 months.
- The disability has a significant impact on everyday activities.
While not everyone’s experience with long-term COVID-19 qualifies them for these requirements, some people’s circumstances do. The janitorial court’s decision recognized that long-term COVID-19 symptoms can fluctuate over time, still qualifying janitorial as a disability that has lasted at least 12 months.
“We are very keen to work with employers to help them understand that in many cases long COVID will actually make the worker a disabled person under the Equality Act 2010,” said Deirdre Costigan, National Officer at UNISON, the UK’s largest public sector union, based in London.
It is unclear whether COVID-19 can be consistently covered by the Gender Equality Act for a long time to come, because there is such a wide range of symptoms and the disease is still new and little researched. “There have been calls for long COVID to be included in legislation as a recognized disability, but the difficulty, resistance to long COVID affects different people in different ways,” said Julie Temple, solicitor at Birkett Long in Essex, England.
How employers should respond to long COVID-19
Convincing employers to make adjustments for long-COVID-19 workers isn’t always easy.
“Sometimes employers don’t believe something until it’s been tested in court,” Costigan said. “The fact that the court, in this most recent case, accepted that the person was a disabled person because of their long COVID was a really positive finding.”
While some employers may need more legal encouragement to take on workers with long-term COVID-19, many others are trying to adapt to the disability. “Employers are becoming more and more aware [long COVID-19]and some are very aware of their obligations and will do their best to accommodate individuals and try to keep them in business,” Temple said.
No enforcement mechanism
There is no effective enforcement mechanism for the Equality Act 2010 and labor courts are a year or two behind. Also, arbitration decisions are not binding, but appeal decisions are.
“I would encourage workers and employers to try to work together. … It may be easier for workers in some industries and in some roles to work from home and therefore minimize the impact that COVID may have had for a long time,” Temple said.
Nevertheless, the caretaker’s labor court decision already paves the way for future cases that will take COVID-19 into account for a long time to come. “There will be more case law on this,” Costigan said. “I think that will make it a little bit easier for union representatives to be able to argue that their members are disabled with long COVID.”
Katie Nadworny is a freelance writer based in Istanbul.