As per 28 September, the total COVID-19 cases in Indonesia reached 278,722, following a single day increase of 3,509 in new cases. Despite the recent spike in the number of cases, activities have continued at a normal pace with businesses restarting their operations, people returning to their offices and a relaxation of social restrictions in many cities as the country transitioned to the so-called ‘New Normal’. However, as a result, clusters of COVID-19 started occurring in workplaces and offices.

In his 7 September statement at a cabinet meeting, President Joko Widodo advised attendees to be cautious of “office, family, and later, regional election clusters of COVID-19” causing the spread of COVID-19 in communities. President Widodo further noted that a sense of safety following the relaxation of restrictions in many cities had made people forget to take preventative measures and adhere to health protocols.

In these circumstances, can the spread of COVID-19, especially in workplaces, be attributed to the negligence of individuals and their failure to implement health protocols? Further, how does the business and human rights framework view this?

The Emergence of Workplace Clusters

The spokesperson of Indonesia’s COVID-19 Task Force, Wiku Adisasmito, said that the clusters were caused by “businesses that are neglecting health protocols”, following the record of 459 confirmed workplace cases by the Task Force on 28 July 2020.

It is reported that 1,081 workers have been infected with COVID-19 in a period from 4 June to 9 August 2020, originating from 166 office clusters. On 16 August 2020, the figure rose to 1,552 cases of COVID-19 infection among workers from 246 clusters. In Bekasi, one of Jakarta’s satellite cities, the occurrence of COVID-19 clusters in industrial complexes are attributable to the lack of enforcement of health protocols such as those prescribing the maximum number of people in the same location at a time, as confirmed by the head of industrial relations at the Bekasi Regency (municipality) Office. The high number of workers using public transportation and interacting with their neighbours also contributes to the spread of COVID-19 infections when they return to workplaces.

With such patterns, it is clear that the challenge of COVID-19 workplaces clusters is not solely about health protocol disobedience by individual workers, but rather, a lack of synergy between the Indonesian Government (especially local government) and business enterprises.

Challenges in Fulfilling the State’s Duty to Protect

It is well established that States have a duty to protect individuals from the risk of human rights abuses committed by third parties, including business enterprises. Principle 3 of the UN Guiding Principles on Business and Human Rights (UNGPs) provides that one of the ways that States can protect the rights of individuals is through law and policies such as those making it imperative for business enterprises to respect human rights, and specifically, the right to health of workers during COVID-19. The International Labor Organization (ILO) has also stipulated in Recommendation No. 97 on Protection of Workers’ Health that “national laws or regulations should provide for methods of preventing, reducing, or eliminating risks to health in places of employment.”

Under Indonesia’s domestic law (No. 23 of 2014), matters related to health are under the authority of local governments. With regards to the health of workers in workplaces, local governments also have the responsibility to take measures on disease prevention, health improvement, disease management, and health recovery, according to Government Regulation No. 88 of 2019 on Occupational Health. One such measure is providing technical guidance on occupational health and conducting surveillance on the implementation of occupational health standards.

The underlying challenge in the implementation of this responsibility lies in differences in the capacity of local governments to respond. This includes limited understandings about the need for local governments to issue relevant policies in ensuring occupational health, especially in times of COVID-19. The Jakarta Provincial Government has issued Governor Regulation No. 51 of 2020 on transitional large-scale social restrictions as part of the “New Normal”. It outlines the responsibility of employers or supervisors in workplaces to implement health protocols. In order to enforce this, Jakarta’s Provincial Government through the Jakarta Smart City program provides an application called JAKI for workers to report any violations of the Regulation.

However, the situation is not the same with local governments in other provinces, cities, or regents. Ordinarily, there are different levels of capacity in local government to issue clear-cut policy and guidance for businesses to ensure the right to health of their workers, as well as different levels of capacity to monitor abuses. This makes it even harder to fulfill the duty of State to protect human rights in times of COVID-19.

Failures in Business’ Responsibility to Respect?

On the other hand, businesses have the responsibility to respect human rights, one of which is through preventing or mitigating adverse human rights impacts that are linked to their operations, as stated by Principle 13 of the UNGPs. This should be done through the process of human rights due diligence to identify human rights abuses and take appropriate measures to mitigate them. Efforts must then be reported publicly, including to the affected stakeholders.

Although the right to health is fundamental for workers, human rights impact assessments on how workers would be at risk of COVID-19 infection once they return to workplaces have not been carried out. Business enterprises have failed to take measures to prevent workers from contracting COVID-19, for example, by responding to the risk of COVID-19 infection during their commute or movement to and from their workplaces. Business enterprises have also failed to mitigate the risk of infections spreading amongst their workers in their workplace. This is exacerbated by the lack of oversight from the local Government as previously mentioned.

Outcomes

Up until the end of September 2020, Indonesia still topped all other ASEAN States with the most cases of COVID-19 since March 2020, continued increases in new cases and no signs of slowing down.

COVID-19 has become a litmus test for the fulfilment of the State’s duty to protect and the responsibility of business enterprises to respect human rights, especially the right to health of workers. The gaps mentioned above are the main determinants for why COVID-19 clusters continue to occur in workplaces and office buildings since workers have no other choice than to return to their workplaces despite an even higher risk of COVID-19 infection in Indonesia. The decision to continue business activities during the pandemic for the benefit of the economy without adequate human rights impact assessments is another gap that needs to be addressed by both States and business enterprises.

Moving forward, the synergy between States and business enterprises to ensure the fulfilment of basic rights of workers should be strengthened, based on the principles in the UNGPs and international human rights law.

Dominique Virgil is the Executive Director of Sandya Institute, a non-profit organization focusing on human rights. She is a law graduate of Universitas Indonesia, with interests in business and human rights and human rights law.

For more on this topic, have a look at our article in the Business and Human Rights Journal (BHRJ) entitled ‘Companies, COVID-19 and Respect for Human Rights’.