The UN High Commissioner for Human Rights has appealed for human rights to be front and centre of the coordinated international response to the COVID-19 pandemic. For tens of millions of workers across global supply chains, multiple human rights concerns are being raised by this “economic and labour market shock” to job and income security in both manufacturing and services. There have been immediate and dramatic upheavals in consumer demands and customer purchasing patterns, in the garment sector for example, and government discouragement or prevention of movement has halted much work deemed non-essential, such as tourism and hospitality. Simultaneously, others designated as “key workers” in the crisis, including transport workers, continue to work tirelessly on the front lines, and at huge personal risk of exposure, in packing and distribution centres, maintaining public transport services for other key workers such as healthcare workers, and in freight transport to provide essential food, hygiene and medical supplies.

In this time of economic and social crisis, all workers desperately need income and job security, with special consideration for those in high-risk health categories, with carer responsibilities, in non-standard forms of employment and informal workers. For those expected to continue to provide their labour despite major risks to life and health, satisfactory safeguards, including adequate supplies of fit-for-purpose personal protective equipment (‘PPE’),[1] thorough employer social distancing and hygiene policies, and attentive training in how to carry out their work safely, are essential.

This requires a united global effort. While states’ duty to protect human rights has, in many national contexts, led to strict ‘lockdown’ orders in combination with economic and social measures offering a safety net to both individuals and businesses, businesses in turn have a responsibility to respect human rights and address adverse human rights impacts with which they are involved.

Rights to be respected by Business

The UN Guiding Principles on Business and Human Rights (UNGPs) ‘operationalise’ and elaborate on the international human rights law standards for businesses, setting out in principle 12 the minimum rights to be respected,[2] incorporating the International Covenant on Civil and Political Rights (‘ICCPR’) and International Covenant on Economic Social and Cultural Rights (‘ICESCR’). UN experts have confirmed “the business sector in particular continues to have human rights responsibilities in this crisis”.

The commentary to UNGP 12 notes that some human rights may be at greater risk than others in particular contexts. Providing a key service during a pandemic, there is a very real threat to the right to life of these key workers (Article 6, ICCPR) – a right that may not be derogated, suspended or limited, even in times of emergency; the right to the “highest attainable standard of physical and mental health” (Article 12, ICESCR); and the right to “safe and healthy working conditions” (Article 7(b) ICESCR). The Committee on Economic, Social and Cultural Rights has determined that the ICESCR Art. 7 enjoyment of the right to just and favourable conditions of work is a “pre-requisite” for the right to the highest attainable standard of health. But the concerning fatality rate of COVID-19 means that, in this context, all three of these rights are directly, inextricably and immediately linked, increasing the fundamental importance of occupational safety and health measures. The latter, in particular, implicates and relies on business action.

Businesses have responsibilities to their workers to realise the right to just and favourable conditions of work, “particularly important in the case of occupational safety and health [as one element of this right] given that the employer’s responsibility for the safety and health of workers is a basic principle of labour law”. This responsibility goes over and above compliance with protections specified in national laws (UNGP 11, commentary).

UN OHCHR COVID-19 guidance states that “the occupational health and safety of those working during this crisis, particularly health workers, should be assessed and addressed. No one should feel forced to work in conditions that unnecessarily endanger their health because they fear losing a job or a paycheck.” In a context where government measures order curfew, strict isolation and only essential trips, any and every key worker asked to break this curfew has the right to expect higher standards of occupational safety and health in line with this increased risk.

Despite COVID-19 infection not being directly related to the nature of most work in the usual sense,[3] the breaking of curfew juxtaposed with the alternative of home isolation justly determines it as a risk of “injury to health arising out of, linked with, or occurring in, the course of” employment as in the OECD Guidelines for Multinational Enterprises. This level of risk that would not otherwise occur requires (particularly multinational) enterprises to ramp up company efforts in occupational safety and health accordingly. These Guidelines go further to encourage business respect for the ILO Convention 155 protection of workers who remove themselves from a work situation, with reasonable justification that it presents an “imminent and serious risk to health or safety” – a right that warehouse workers have called upon in recent weeks, claiming their employers are unable to enforce the recommended social distancing and provide a healthy and safe working environment.

Business’ responsibility to respect human rights means they must avoid causing or contributing to adverse rights impacts through their own activities – confirmed to include both acts and omissions of the company (UNGP 13(a) and commentary). Further, according to principle 17 and commentary of the UNGPs, businesses have the responsibility to carry out human rights due diligence to not only identify adverse impacts on rights, but also prevent and mitigate them by assessing actual and potential risks. This preventative assessment is critical, particularly when operational level grievance mechanisms to remedy adverse business impacts are often ineffective token gestures, without genuine worker involvement in their design and implementation, and worthless in retrospective critique of occupational safety measures in a global pandemic with potentially irremediable consequences.

Considering the above, a business failing to provide a safe and healthy working environment with measures that go far enough to protect against the indisputable increased risk of COVID-19 infection – that is, not providing the PPE, social distancing policies, training and enforcement necessary – would be an omission to prevent the risk of adversely impacting the three key rights discussed above.

Beyond the clear physical health risks, key workers are under the immense pressures of increased demand alongside staffing shortages due to illness and self-isolation, and suffering acute anxiety related to the risk of personal exposure and potential of endangering (and even, accordingly, distancing from) loved ones. The provision of PPE and other adequate workplace measures may go some way to provide the reassurance to alleviate excess mental strain.

Business Responsibilities along their Supply Chain(s)

Not only must businesses avoid causing or contributing to adverse rights impacts by their own activities, they must seek to prevent or mitigate those “directly linked to their operations, products or services by their business relationships” (UNGP 13(a) and (b)). Businesses, therefore, owe a similar duty to workers of subcontractor and supplier companies along their global supply chains, equally rooted in international human rights norms and including the right to safe and healthy working conditions.

What is deemed appropriate action on the part of the business will depend on i) whether the company has caused or contributed to the adverse impact, or whether it is solely directly linked via a business relationship; and/or ii) the extent of its leverage over the other business (UNGP 19(b)). It is of note that “solely” indicates that a company could be linked by a business relationship to another along its supply chain, but be deemed to have also itself caused or contributed to an adverse human rights impact that occurs at that point in the supply chain.

Multinational household brands – the ultimate “economic employers” at the top of the supply chain – are often the majority or even sole contractor at sites of production. They have the greatest leverage over that business and, either directly or indirectly (through their power to set pricing and product demands), determine the working conditions for workers at those sites. Even where many such multinationals purchase from a supplier, each has a significant amount of leverage. This leverage corresponds to the weight of responsibility (as well as the capacity and means due to healthy cash flow and resources) to take active steps to prevent workers along their supply chains from feeling the full human rights impact of this crisis.

In line with the responsibility to carry out human rights due diligence, companies have arguably even greater responsibilities to workers along their supply chains. Businesses cannot fully respect these workers’ rights without accounting for the specific local context. They must map the major risks that come with any vacuum in protective host state legislation, such as weak labour inspection regulation or practice, (directly impeding the rights to life, health and a safe, and healthy working environment discussed above), and lack of social protection (a right enshrined in the UDHR and Article 9, ICESCR). Company mapping must anticipate any potential for government abuse of their emergency powers by restricting human rights, including the rights to freedom of association and collective bargaining, and for widespread destitution among the workforce, including the impact of any particular reliance on vulnerable groups like migrant workers. Business must improve their preventative human rights due diligence processes as a matter of urgency and satisfy their corporate duty to respect by extending wage protection crisis funds to workers without social protection in the supply chain.

Risk mapping, and the offsetting as far as possible of any void equating to a risk, should have already been carried out. It cannot require catastrophe and a retrospective assessment of what could have been done for businesses to step up. Multinationals have thus far failed in their duty to perform adequate human rights due diligence and continue to profit from production without protections. This pandemic is of such an unprecedented scale that it may be too late for full crisis planning or prevention, but business, following some examples of good practice measures from Unilever, must urgently take action to meet their responsibilities now.

UNGP 14 and commentary set out that the scale of action required to meet business’ supply chain duties is proportional to the size of the company (directly correlating to leverage and capacity), and the scale and remediability of the anticipated adverse impacts. In this unprecedented global crisis, top tier companies requiring, ensuring or even themselves providing, COVID-19 appropriate PPE, occupational safety and health policies, training and enforcement, as well as appropriate economic support along their supply chains, is a matter of life and death for workers around the globe.

The failure of many lead firms to clearly demonstrate their respect for human rights during this crisis not only highlights the limitations of voluntary corporate social responsibility standards, but flaws in the global supply chain model itself. A binding treaty on business and human rights that realigns the normative asymmetry between the legally enforceable rules that protect business and the soft law approaches to corporate accountability is what the post-pandemic world needs. Ending the impunity for corporate human rights abuses must be at the heart of a new social contract based on the respect for human rights, the rule of law, and climate justice.

 

Ruwan Subasinghe is the Legal Director of the International Transport Workers’ Federation (ITF), a global trade union body representing over 18.5 million workers in 147 countries. He specialises in labour, human rights, and international law. Ruwan represents the ITF at external bodies, including the International Labour Organization (ILO) and the Organization for Economic Co-operation and Development (OECD). He is frequently called up as an expert on international labour standards and, among other things, guest lectures at the International Training Centre of the ILO. Ruwan sits on the Advisory Board of the International Lawyers Assisting Workers (ILAW) Network and the Board of the Ethical Trading Initiative (ETI). Prior to joining the ITF, Ruwan practised at an international law firm based in London. He holds a Bachelor of Laws Degree from the University of Durham and a Master’s Degree in Industrial Relations from the London School of Economics and Political Science.

Helen Breese is Legal Assistant at the International Transport Workers’ Federation (ITF), a global trade union federation representing over 18.5 million workers in 147 countries. Her main interests are international law, human rights and corporate accountability. Before joining the ITF, she worked in the International Group Claims department of a London-based human rights law firm on corporate accountability and modern slavery litigation. She has experience working for international human and child rights NGOs in Asia and London, and completed an extended traineeship at the Court of Justice of the European Union. She holds a Bachelor of Law with European Law from the University of Nottingham, a Diploma of French Law from the Université de Bretagne Occidentale, and a Master of International Laws from Maastricht University and Hong Kong University.

 

[1] Of a level appropriate to the specific work, to minimise cross-contamination amongst workers and with the public, through direct human-human contact and the handling of goods and equipment; such as face masks, (disposable) gloves, and hand sanitizer gel.

[2] Set out in the International Bill of Human Rights and International Labour Organization (‘ILO’) Declaration on Fundamental Principles and Rights at Work. The former draws together the Universal Declaration on Human Rights (‘UDHR’), the ICESCR, and the ICCPR and its two Optional Protocols. The ILO Declaration includes the eight core ILO conventions.

[3] Although the “direct link… between the exposure to these biological agents arising from work activities and the disease(s) contracted by the worker” in ILO Recommendation 194 on Occupational Diseases, e.g. indicates no obligation that exposure be intrinsic to the nature of the work itself. Indisputable for healthcare workers.