Should Long COVID be classified as an occupational disease?

08 Mar 2021

Governments across Europe including Germany, Italy and Denmark classify long COVID as an occupational disease, and there have been calls from MPs that it should also be recognised as an occupational disease in the UK for frontline workers.

It has been argued that the pandemic has not affected everyone equally in society. Doctors, nurses, care workers, and other key workers have had no choice but to continue to work in public-facing roles, despite the very real risks of contracting COVID-19. Studies undertaken by Kings College and the Office of National Statistics suggests one in ten of the working population contracting COVID-19 are still suffering a range of ongoing symptoms 12 weeks post onset. It is unsurprising that health, care and key worker sectors have been affected more than others. 

Layla Moran MP (chair of the All Party Group on Coronavirus, “APGC”) has been campaigning that more needs to be done for people in the UK experiencing long COVID. Whilst the Government is investing millions into further research, vaccination and treatment she does not believe that this is enough. Moran has been chairing the cross-party evidence hearings which have heard from medical professionals and others suffering for many months from debilitating symptoms of long COVID, such as chronic fatigue, brain fog, joint pain and lung damage, amongst many other recognised symptoms, which are preventing a return to work.

It has now been reported that 65 MPs and peers have signed a letter to the Prime Minister, asking for long COVID to be recognised as an occupational disease and the creation of a long COVID compensation scheme for health and social care staff and key workers. They are calling for a "symptoms-based" national register to document how many people in the UK are living with long COVID, so as to estimate the cost of the scheme and ensure employees and their dependents are protected and receive compensation if they contract the virus whilst working.

Compensation in Europe

France was one of the first countries to roll-out a scheme to compensate people with COVID-19; the scheme commenced in September 2020. The scheme attracted criticism from unions as it only covered a small number of frontline workers, excluding some employees in the healthcare sector; other sectors have been campaigning for inclusion. Were a scheme to be developed in the UK, due consideration would need to be given to the class of worker who qualifies and unions may lobby for teachers and employees in the service sector to be included.

Another anticipated issue is proving that an employee contracted the condition as a result of exposure in the workplace rather than outside the workplace. Italy addressed this issue by classifying COVID-19 as an occupational injury from March 2020 and opening a scheme to every worker across the country affected by the virus. Payments were made based on the level of risk at work, with health and social care workers listed as the highest risk, with other sectors classified in medium to low risk categories.

Prescription and compensation in the UK

It was reported in the BMJ that the APGC’s letter suggests that a “UK compensation scheme could mirror the Armed Forces Compensation Scheme already in place for military veterans.” Moran said that this would mean eligible recipients receiving regular monthly payments depending on their circumstances and level of need. The Armed Forces Compensation Scheme (AFCS) is a no-fault scheme in respect of injury, illness or death as a result of military service.

Recognising a condition as an Occupational Disease is usually referred to as “Prescription” – the adding of the disease to the list of diseases covered by Industrial Injuries Disablement Benefit in light of developing knowledge. There are generally two elements needed to successfully claim IIDB: medical diagnosis with a prescribed disease and employment in the qualifying work for that disease. The test for attribution (under the Social Security Contributions and Benefits Act 1992) is “reasonable certainty”. For potential new occupational diseases the prescription assessment is undertaken by the Industrial Injuries Advisory Council (“IIAC”). As with civil compensation in the Courts, the IIAC looks for evidence that the disease is more likely than not to be due to work i.e. on the balance of probabilities. In respect of diseases where proof of causation involves consideration of risk, like the courts the IIAC considers relative risk (“RR”), and generally requires an RR >2 i.e. the exposed worker population is more than twice as likely to develop the disease than the general, unexposed population. In other words, the risk of the disease is doubled for those employed in the particular job/exposed to this hazard.

As with causation in COVID-19 employers liability civil claims, proof of causation for prescription purposes will not be straightforward due to the communicability and prevalence of COVID-19 outside of the workplace. Conversely, if prescription for COVID-19 was recommended by the IIAC in certain work sectors (having carefully considered the relevant research and data available in respect of those work sectors), this would certainly lead to a perception for claimants pursuing civil COVID-19 claims that the causation hurdle has been lowered, particularly in those work sectors. This could very well lead to an increase in civil claims in those work sectors prescribed.

Looking ahead

We are not aware of any intention by Government to prescribe long COVID or to set up a long COVID compensation scheme at this time. It is clear, however, that the IIAC has more than a watching brief on long COVID. In its most recent published minutes in October 2020 it is recorded that the IIAC had been looking at COVID-19 and its potential occupational impact. Ahead of that meeting they had collected data from RIDDOR reporting/ONS studies and considered input from a members consultation with the Association of Personal Injury Lawyers.  There is evidently an evolving draft paper under internal consideration and an indication that at least some of its members have raised the possibility of prescription. It is likely that the Council will publish a formal position paper in the next few months and we expect that prescription will be discussed.


Written by Claire Lawlor (Claire.lawlor@blmlaw.com) and Malcolm Keen - malcolm.keen@blmlaw.com

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Claire Lawlor

Claire Lawlor

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Manchester


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