Disability and the workplace beyond Covid

1st September 2021
With almost a month passed since Wales’ equivalent of “Freedom Day” on 7th August, many employers have been keen to get staff back to the office. But not all employees are sharing that excitement, especially employees with disabilities.

A survey conducted by Scope indicated that only 2% of disabled people felt safe about “Freedom Day” in England[1] and the most up-to-date data shows that 68% of deaths from COVID-19 were among disabled people in Wales.[2] It is no wonder that many disabled employees are feeling anxious about returning to the workplace.

“What is a disability?”

There are two ‘models’ to describe disability, the Medical Model and the Social Model of disability.

With the medical model, a person’s impairments are the focus of the disadvantage but with the social model, the focus is on the environment around them that causes the disadvantage. For example, lack of access to buildings and negative attitudes. In short, it is society that is the issue and not a person’s condition.

Despite the importance of the social model, equality legislation is based on the medical model, namely the Equality Act 2010. The Act defines disability as a physical or mental impairment that has a substantial (more than trivial) and long-term (lasting or expecting to last at least 12 months) adverse effect on the ability to carry out normal day-to-day activities (not necessarily work-related but everyday tasks such as going to the shops, personal hygiene and socialising).

This definition captures many conditions including mental health conditions that have been on the rise during the pandemic.

If an employee is disabled under the Act, they will have legal protection from discrimination, harassment and victimisation in the workplace which an employer could be held liable for. The employer would also have a duty to make reasonable adjustments for that employee.

“But we don’t have any disabled employees so we don’t need to worry”

Can you be sure?

Disability can affect us at any time in our lives. According to the WHO, almost everyone will be temporarily or permanently disabled at some point in life. You may also have existing employees that have disabilities that you are unaware of. Employees who have worked remotely for the past 18 months may have been able to cope with their disability and therefore have not made their employer aware. However, these employees may face difficulties when returning to the office.

Furthermore, with the impact of long Covid set to rise, the chances of becoming disabled have increased.

“My employees are all fit and young so are unlikely to suffer from long Covid”

Long Covid can affect anyone. It is a condition where symptoms of Covid 19 last a prolonged amount of time post-infection. Official UK data suggests that over 10% of people still suffer from Covid symptoms 12 weeks post-infection.[3] Symptoms can include fatigue, shortness of breath, brain fog, dizziness, anxiety, joint pain, tinnitus and heart palpitations.  On the extreme end of the spectrum, some suffer from permanent organ damage. It is also not limited to those who suffered from severe Covid symptoms initially.

Recovery from long Covid isn’t linear and this can be difficult for employers to manage. It is common for an employee to be fit to attend work one day but be incapacitated the next.  Evidence has also suggested that overexertion can cause a relapse of symptoms and NICE has recommended that Covid sufferers pace themselves for at least 12 weeks post-infection, which employers should bear in mind.

Long Covid could be “disability” under the Equality Act 2010 which means that employers have additional responsibilities such as making reasonable adjustments. This could include being flexible with working hours. For example, if an employee with long Covid suffers from exhaustion in the morning, allowing them to start work later in the day. Other adjustments could include changes to workload and ensuring that employees are not being unfairly penalised by the business’ absence management process.

Sadly, a survey conducted by TUC indicated that 52% of workers with long Covid experienced discrimination in the workplace.[4]

“What do we need to do?”

  1. Know your legal responsibilities

This includes carrying out risk assessments, adopting Covid safety measures, complying with health and safety obligations, ensuring your policies and procedures are up to date and accessible and understanding your responsibilities to disabled employees under the Equality Act 2010.  As an employer, you are responsible for the health, safety, and welfare of your staff whether they have a disability or not. Seek advice and training if there is a gap in your knowledge or understanding.

  1. Consult with your employees

Consult with your staff at the earliest opportunity about the return to work to resolve concerns together. Discussions should include how and when employees may return, risk assessments and any planned adjustments to the workplace to make it a safer environment. Employers could conduct staff surveys to gain an initial understanding of concerns and then invite employees for a one-to-one consultation.

Staff who have disabilities, health issues, caring responsibilities or who are anxious about returning to work should be individually consulted to discuss their concerns and any adjustments that can be made. Consultation should be an ongoing process and not just a one-off event.

Employers must not make assumptions about an employee’s condition, situation, or what adjustments they may need. Working from home is not always the answer for disabled employees. The accessibility of your premises is paramount not just for employees but for your clients, customers, and visitors.

It should also be remembered that not everyone is or can be vaccinated which can be an additional concern for people with disabilities or those living with a disabled or clinically vulnerable person.

Take an empathetic and individual approach.

  1. Educate yourself on disability issues

Research “ableism”, the social model of disability and the disability pay gap. Read the free resources available for employers on disability charity websites. Attend disability in the workplace training and commit to the “Disabled People’s Employment Champions” service. This is a free service available for all employers in Wales which provides advice, information and support to employers regarding disability.

For further information see:

Disabled People’s Employment | Business Wales Skills Gateway (gov.wales)

Further reading:

Disabled People’s Employment Champions Partner Toolkit.pdf

Locked out: liberating disabled people’s lives and rights in Wales beyond COVID-19 | GOV.WALES

Home | Disability charity Scope UK

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Written by: Carys Strong LLB (hons), Non-Practicing Solicitor, Employer Partner for Chwarae Teg’s AN2 Business Programme