Designating long Covid an occupational disease could make it easier for workers to pursue successful personal injury claims, with healthcare firms potentially at greater risk, lawyers have warned.
The warning follows reports by the BBC yesterday that 65 MPs and peers have written to prime minister Boris Johnson asking for long Covid to be made an “occupational disease”.
Liberal Democrat MP Layla Moran, who chairs the All Party Parliamentary Group on Coronavirus, said she wants the condition to be classed as an occupational disease which would enable sufferers to be awarded a benefit according to their degree of disability – called an Industrial Injuries Disablement Benefit (IIDB).
Waiting for the IIAC
Jim Byard, partner at UK law firm Weightmans, explains that IIDB is a non-contributory and no fault state benefit that is only paid if the Industrial Injuries Advisory Council (IIAC) considers it to be a “risk of occupation”.
He told Health & Protection: “The IIAC’s report on Covid-19 and Occupation was published in March. It stopped short of prescription for any occupational type despite interim findings suggesting the disease had in many cases arisen ‘more likely than not’ due to occupational rather than non-occupational exposure.
“The IIAC recognised that its findings were preliminary and may need to be adjusted for factors such as social deprivation, given that Covid-19 as a condition can arise through both occupational and non-occupational exposure.
“The report concluded that individuals with the greatest exposure to Covid-19 allied to having the most face-to-face contact were most at risk.”
Chris Fletcher, partner and head of occupational disease at law firm BLM, told Health & Protection if the MPs were successful, those suffering from long Covid would be entitled to claim state benefits directly related to occupational illness; something they cannot yet do.
“The IIAC has already accepted there is evidence that exposure at work has more than doubled the risk of death from Covid in some occupations, notably in healthcare occupations such as nursing, but it views the data as too limited and varying in quality to justify prescription for benefits purposes,” he said.
“In particular the IIAC has said that evidence relating to any link between occupation and risk of ongoing disability following Covid-19 infection is scarce, which is the key issue relating to long Covid.”
However, Fletcher noted the IIAC has also said evidence of a doubling of risk in several occupations, including health and care providers, indicates a “pathway to prescription” for benefits purposes and it has promised to review the position when more data is available.
“In a damages claims context, proving causation between the workplace setting and infection remains a huge hurdle for claimants given that infection risk arises equally outside the workplace,” he continued.
“If, in a benefits context, the IIAC’s updated review of the evidence concludes the scientific case for a doubling of risk in certain workplace settings is strong in statistical terms, such a conclusion is likely to encourage the bringing of civil claims for damages, with claimants attempting to use that statistical analysis to demonstrate causation in their own individual cases.”
Personal injury claims
Byard predicts in addition to the payment of state IIDB, making long Covid an occupational disease would make it easier for claimants pursuing damages for personal injuries to establish not only that they have the condition but that it was attributable to employment.
“In summary, this would reduce, but not eliminate the burden of proof on the claimant to establish causation – it is recognised that causation generally is a difficult hurdle for many claimants to overcome when pursuing claims for Covid-19,” he said.
“In turn, this is likely to result in an increased number of successful claims against such employers.”
But Byard added that merely establishing that Covid-19 has arisen through occupational exposure was insufficient for a claim for personal injury damages to succeed.
“The claimant must also establish that the employer was negligent and that it breached its’ duty of care towards the employee.
“Provided healthcare providers can establish effective and safe systems of work, adequate and suitable personal protective equipment and have considered measures to include obviating or minimising potential exposure, then a defence to the claim can still be maintained.”
And Fletcher anticipates that the rules, if MPs are successful in their call for long Covid to be made an occupational disease, will apply in very much the same way as they do currently.
“Any employer whose employees are at work and unable to work from home due to the nature of their roles, will need to ensure that they are putting in place Covid safe measures to reduce any risks as far as is practicably possible, with assessment of course being tailored specifically to the healthcare setting,” he said.
“In this context we should also consider the quality and availability of PPE at the early stages of the pandemic, particularly for frontline workers.”
Following other countries
Fletcher emphasised that private healthcare employers will need to show they were doing the best they could to protect staff in circumstances outside of their control.
“The issue of whether the IIAC accepts sufficient association between Covid infection, and long Covid symptoms, and the workplace has no direct bearing on those duties either now or in the earlier stages of the pandemic, but will impact the entitlement of those affected to claim specific benefits as a result of long term health impact of Covid infection,” he continued.
“It is worthy of note that a number of governments across Europe have already classified long Covid as an occupational disease, including France, Germany, Belgium, Italy and Denmark – some of whom have set up schemes to provide financial support based on the level of risk at work, with healthcare workers listed as the most at risk.”
But private healthcare providers may also want to consider steps they might need to take to support staff suffering with long Covid symptoms, Fletcher suggested.
This could include redeploying staff suffering into less onerous roles, depending on the nature of their symptoms and the impact this has on their ability to do the job effectively.
“It’s important to remember that employees will be covered by the Equality Act 2010 provisions relating to disability discrimination if they have a physical or mental impairment that has a substantial and ‘long-term’ (likely to last for at least 12 months) effect on their ability to do normal daily activities.
“Making reasonable adjustments for colleagues, where relevant, is crucial,” he concluded.