Long Covid and employment

I am on sick leave with Long Covid. I work in the NHS so what pay should I be getting?

During any period of Covid 19 related sickness absence, you should receive full pay, including any pay enhancements such as cost of living supplements or unsocial hours payments, you would have received if you had worked your planned shifts.

Covid-19 related absence will be recorded separately from other absences and will not be managed under your NHS organisation’s existing Sickness Absence Policies.

This means the following will apply for any absences caused by your sickness due to Covid-19:

• They will be recorded separately as Covid-19 related absence.
• The pay you receive will not be affected by or be counted towards your existing entitlements to paid sick leave.
• Absences will not be counted towards any sickness absence related policy triggers.
• Entitlement and access to other forms of special leave will not be affected.

Pay entitlement by country

• England
• Northern Ireland
• Scotland
• Wales

I am on sick leave with Long Covid.  I work outside the NHS so what pay should I be getting?

Check with your employer and review your contract of employment to see what entitlements you have to sick pay. Whilst most employers will follow their own sickness absence policy and therefore payments whilst off sick, it is worth raising with them that currently the NHS is operating a policy of full pay whilst on Covid special leave.  Some employers carry out NHS work and align themselves closely with NHS terms and conditions so an approach to the employer to consider full pay could be made.  Contact your CSP rep or CSP enquiries if you do not have a workplace representative.

If you do not have contractual sick pay, so long as you regularly earn £118 or more a week you should be entitled to SSP.  You can check your eligibility on the government's website.

From 13 March 2020, Statutory Sick Pay (SSP) is available for all eligible employees diagnosed with Covid-19.  It is payable from the first day you are unable to attend work.

Some private sector employers take out permanent health insurance or income protection insurance to provide support to staff who become incapacitated during their employment. Such policies enable employers to access money that they can pass onto employees to make up some or all of their normal salary. These policies have eligibility criteria that the employee has to satisfy.  The fact that Covid 19 is a new disease with an uncertain prognosis may make this problematic, although there are early signs from the insurance companies that underwrite the policies that in some circumstances long Covid may sufferers may be covered.  It is certainly worth checking whether your employer does purchase group cover in any relevant insurance arrangements.

How should my employer support me with my return to work?

Your employer’s sickness absence policy should describe the process that you can expect so this is a useful resource to access at an early stage. 

An early Occupational health referral and ongoing referrals in line with any policy are essential as they will be useful in determining what stage you are at and can give the employer a greater understanding of the situation. Employers should certainly seek Occupational Health advice to support your return to work (RTW) after a lengthy period of sickness absence.  This OH assessment should cover whether you are likely to be covered by the Equality Act, the need for a phased return (gradually building up hours and responsibilities) and any reasonable adjustments that might be necessary.

You should be encouraged to contribute in any discussions with your manager about RTW plans, as you know how you are feeling and the demands of your job.

In the NHS, you should suffer no detriment in terms of pay during your phased RTW following a Covid related absence. 

If you work outside the NHS, you would need to check your pay entitlement in the company policy.  At any formal meeting it imperative the employer understands as much as possible the effects of long Covid and why the NHS has treated this differently than other long term illnesses.  Covid 19 is a new disease and greater understanding of the long term effects is developing making it much more difficult to be clear about a return to work date.  Referrals to a Long Covid clinic at an early stage are really important as this is when the majority of progress is made.  A major concern is when an extended period of sickness can result in not being paid after a certain amount of time depending on the policy.  It is important to find out at an early stage how long your employer is paying you for and how long SSP is paid.  Consideration could be given to using accrued annual leave to be paid to cover any sickness for a limited period, but it is not sustainable for lengthy periods as the symptoms of long covid, in particular the fatigue, means that annual leave for rest and relaxation is particularly important to avoid burn out and further periods of absence.

CSP takes the view that it is in the interests of employers to help staff to return to work as soon as they are well enough and therefore support them financially to do so without detriment

NHS guidance

• England
• Wales - return to work guidance is in the process of development that will sit alongside the All Wales Managing Attendance at Work policy. The link provided is to a brief Welsh government information page on Long Covid that includes a link to the NHS Wales Covid recovery app.
• Scotland
• Northern Ireland

Other useful resources

1. NHS Staff Council Guidance on the Management of Long Covid
2. Advice for Employers and Managers from the Health at Work Network, the group representing occupational health providers
3. Useful document from NHS Inform,Scotland's national health information service

What are my options if I am ready to undertake some work but not fit for my previous job?

GPs are able to issue ‘fit notes’ in circumstances where you and the doctor agree that you are fit enough to undertake some work, but not return to your previous job.

A fit note requires your GP to confirm that you are either “Not fit for work” or “May be fit for some work, taking account of the following advice”

The GP can suggest one of four options:

• A phased return to work
• Altered hours
• Amended duties
• Workplace adaptations

The aim of fit notes is to facilitate an earlier return to work, but employers are not legally obliged to accept the option proposed.  If your employer cannot accommodate it, then the fit note must be treated as if your GP has stated that you are “Not fit for work” and you will remain off sick.

Will I be covered by the Equality Act?

The Equality Act 2010 seeks to secure equal treatment for people with a protected characteristic compared to others without that characteristic.  The Equality Act prohibits less favourable treatment (discrimination) on the following grounds:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion and belief
• Sex
• Sexual orientation

Disability is defined in the Equality Act and an individual has to satisfy all elements to be covered.  A person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. It counts as long term if it has lasted 12 months or is likely to last at least 12 months or likely to last for the whole of their life. 

The fact that Covid 19 is a relatively new disease and we are still learning how it manifests means that there is limited evidence available currently about the long-term prognosis for ‘Long Covid’ or ‘Post Covid Syndrome’. However, the multi system presentation and the similarity to existing conditions that can fall within scope, like Chronic Fatigue Syndrome, suggests that the some severely affected individuals are likely to be covered.  If in doubt, please contact your CSP steward for further advice

In the context of Long Covid, there are two potential areas for consideration:

1. Disability discrimination including a potential failure to make reasonable adjustments
   
   For more information on this, please see FAQ 6 (below)
2. Discrimination in respect of other protected characteristics.
   
   Researchers from Kings College London have identified a number of risk factors for the development of Covid or long Covid.  Specifically, women under 50 years old are 50% more likely to suffer from long Covid that men in the same age group.  Older age is a known risk factor for Covid 19 and those of a Black Asian and minority ethnic groups are disproportionately affected.

Employers should be vigilant to avoid a disability discrimination claim or an indirect discrimination claim when they deal with workers who have a diagnosis or symptoms suggestive of Long Covid

What is a 'reasonable adjustment'?

An employer has a duty under the Equality Act (section 20), to make 'reasonable adjustments' ie to take reasonable steps, to alleviate any substantial disadvantage to a disabled person because of any provision, criterion or practice (PCP) at work.  PCPs might include the provisions of employment policies like sickness absence and capability or existing terms and conditions such as hours of work or working patterns. Reasonable adjustments can also include physical changes to the workplace.

Employers are expected to remove barriers that make it harder for a disabled worker to enter the workplace and to contribute productively.  Specific reasonable adjustments might include reallocating duties, reducing working hours, allowing extra breaks, modifying absence trigger points, moving a worker to a more accessible work location or allowing them to continue to work from home.  Appropriate reasonable adjustments depend on the nature of the disability and should be the subject of discussion and agreement with the individual and potentially with their representative. 

Even if an individual was not covered by the Equalities Act we would expect employers to be supportive and put in reasonable adjustments wherever possible in the interests of facilitating a return to work.

If I caught Long Covid at work, can I pursue a Personal Injury claim?

In assessing whether or not a claim is likely to be successful, the normal principles of personal injury (PI) apply. The burden of proof rests with the claimant to prove that their employer (or some other third party who owes them a duty of care) has breached their duty of care towards them in some substantive way and that, on the balance of probabilities, their infection was caused by this breach of duty.

A briefing developed by Thompsons, the specialist employment lawyers the CSP uses gives further information about the PI process.