Incapacity due to ill-health – how to manage long COVID in the workplace

Discovery Health’s Head of the Centre for Clinical Excellence, Doctor Noluthando Nematswerani, said “Long COVID affects every aspect of life, it affects one’s mental health and one’s ability to focus and work, and could have economic consequences too. This is why it’s so important that we acknowledge the prevalence and growing awareness around Long COVID.”

Whilst there is currently no internationally accepted definition for “Long-COVID”, the US Centers for Disease Prevention and Control describes post-COVID conditions as a wide range of new, returning or ongoing health problems people can experience four or more weeks after they have been infected. Patients may present with a remarkably wide range of new or persistent symptoms following COVID-19 illness, including, but not limited to, severe tiredness or fatigue, shortness of breath, ongoing cough, chest pain or heaviness, joint pain or swelling, difficulty concentrating or “brain fog” and depression.

The South African National Institute for Communicable Diseases (NICD) notes that it is difficult for health care professionals to predict when a person’s symptoms will improve, since it differs from patient to patient. The recovery will depend on the patient’s age, overall health, and how severe the COVID-19 symptoms are. Some symptoms might continue even while other symptoms improve or go away entirely. Due to the many different symptoms that patients with Long COVID may have, they may need a team of health care workers to help relieve their symptoms including primary care clinicians, specialist clinicians, physiotherapists, occupational therapists and mental health care practitioners.

Most employees are entitled, at the minimum, to paid sick leave in each 36 month sick leave cycle equal to the number of days they would usually work during a six week period. In circumstances where an employee contracts COVID-19 and thereafter experiences ongoing symptoms which may be related to COVID, it is probable that the employee will exhaust the paid sick leave entitlement. It may then become necessary for the employer to consider implementing an incapacity process due to the employee’s ongoing ill-health.

Schedule 8 of the LRA., the Code of Good Practice: Dismissal (Schedule) distinguishes between incapacity on the grounds of ill health which is temporary and which is permanent.

The Schedule provides that where an employee is temporarily unable to work, the employer should conduct an investigation into the extent of the employee’s incapacity. The employee should, during the employer’s investigation, be given an opportunity to state a case in response and to be assisted by a trade union representative or fellow employee. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. Factors such as the nature of the job, the period of absence, the seriousness of the illness and the possibility of securing a temporary replacement should be considered.

In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee’s disability.

The Schedule also provides that when determining whether a dismissal arising from ill health is unfair, the following should be considered:

1. the extent to which the employee is able to perform the work;
2. if the employee is not capable-
   (i) the extent to which the employee is able to perform the work;
   (ii) the extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and
   (iii) the availability of any suitable alternative work.

Given the challenges associated with a health care professional providing a prognosis which relies on extensive research over several years or decades, it may prove difficult for employers to assess whether the incapacity arising from Long COVID is permanent or temporary.

The NICD website provides those affected by Long COVID with advice and home management strategies in order to improve overall wellbeing and manage the symptoms associated with Long COVID. For example, extreme fatigue is one of the most common symptoms which patients are required to manage. In order to do so as effectively as practicable, the NICD recommends setting realistic goals, doing low-intensity exercise, performing important tasks in the morning when energy levels are at their peak, taking breaks throughout the day, ensuring sufficient sleep and consulting a psychologist or psychiatrist to manage the mental health effects of the illness.

Employees may find, after implementing these strategies, that they are able to perform their duties in accordance with the standard required of them after a reasonable period has elapsed. Reasonableness will be determined on a case by case basis with reference to the nature of the position and whether a temporary replacement can be appointed. In that instance, the employer will be able to avoid implementing an incapacity process.

However, if the employee is not able to perform adequately within a reasonable period of time, the incapacity may be permanent in which case the employer will need to determine whether dismissal is appropriate.

Employers are encouraged to review the disability cover offered to employees as a part of their remuneration package in order to determine the insurer’s approach to this particular illness.

The manner in which employers address the sick leave and incapacity issue may be similar to where an employee presents with a serious illness (such as cancer), the treatment for which may affect the employee’s ability to work for either a short or prolonged period of time and which cannot be determined until the employee receives the treatment.

The vast array of symptoms in Long COVID patients will require employers to consider every employee who presents with Long COVID on a case by case basis, having specific regard to the symptoms the employee is experiencing and the nature of the position held.