Covid-19 and Companies’ Human Rights Responsibilities to Workers

When making decisions about the actions to be taken to address the unique challenges of the Covid-19 pandemic, companies and their leaders have relied on a variety of tools and guidelines specific to their situations such as applicable laws and regulations, their own internal codes of conduct and procedures, the values and expertise of the leaders serving as board members and senior executives and the expectations of their unique group of stakeholders.  In a paper examining companies’ responsibilities for workers and affected communities in the time of the Covid-19 pandemic, the Institute for Human Rights and Business (“IHRB”) argued that companies needed a clear set of rules or a common framework from the international level aimed at guiding companies on how they could respond in a manner that was consistent with recognized responsible business practices and relevant international human rights principles and standards. 

The IHRB began by emphasizing several basic principles that should always be a foundation for a company’s response to an emergency situation such as the Covid-19 pandemic.  First, the company’s actions should be guided by the results of a rigorous human rights risk and impact assessment so that its responses can be tailored to its specific risk profile.  Risks should not be limited to those posed to the company and its workers, but also those linked to the company’s presence in the communities in which it operates, the company’s business relationships and the use of the company’s products and services by customers.  Second, the company should ensure that its conduct is not in away contributing to the spread of the pandemic or increasing pressures on the health systems in the communities in which it operates.  Finally, companies need to be mindful of the risks of racial discrimination caused by misinformation regarding the pandemic and take reasonable steps to protect their workers against stigmatization or physical or verbal attacks.

The IHRB then suggested the follow specific measures that companies should include in planning for their response to the pandemic:

• Improve workplace practices by monitoring the premises including providing clear instructions to employees and visitors to protect their health, monitoring the health of each employee and visitor and maintaining a record of visitor arrivals and departures; redesigning the workplace by making hygiene products available, routinely and regularly cleaning the premises, implementing procedures to reduce crowding in common spaces and promote social distancing and rethinking the customer interface; and reviewing wide operations including reducing non-essential travel, rethinking production practices and suspending operations when risks are too high while continuing to provide workers with full compensation and benefits if resources permit.
• Protect and support workers by putting in place childcare services and other caring assistancefor workers where possible and appropriate; reassuring workers that they will not be penalized if they do not report to work due to illness; offering flexible work hours, enabling work from home where feasible and protecting workers who do not have the option to work from home; rethinking how workers commute; managing reductions in staff in such a way as to minimize disruption or loss of existing health care benefits; and paying attention to the special needs and challenges of essential workers and workers who are not in a formal employment relationship with the company.
• Deal with sickness by encouraging and requiring sick workers to stay at home and assuring them that there will no adverse consequences for staying home; being generous with sick leave and clear about when and how sick leave benefits will be made available; administering leave policies based on trust and compassion and avoiding burdensome requirements such as notes from health care providers as a condition for taking the leave; and offering psychological support where necessary.
• Communicate clearly by helping workers and members of the communities in which the company operates to protect themselves from the pandemic by providing them with scientifically accurate information in clear language to minimize health risks; establishing a clearly communication strategy within the company managed through a centralized team that consults with health authorities and experts and all of the company’s stakeholders and meets regularly and often to monitor the situation and communicate transparently with all of the company’s stakeholders; and being consistent and honest with messaging that is based on the best-available professional advice to build trust among stakeholders.
• Engage unions and support the organization of workers when they are not unionized so that workers have a voice in decisions about the company’s response to the pandemic and a safe path for making reports of health and safety risks without fear of retaliation.

The IHRB is not the only organization advising companies to approach the Covid-19 pandemic in a socially responsible manner.  A note prepared by the OECD Centre for Responsible Business Conduct outlined a responsible business conduct (“RBC”) approach to the Covid-19 crisis that included social dialogue, industrial relations and stakeholder engagement; robust practices on worker leave and other benefits; environmental, health and safety management; a corporate governance focus on disaster preparedness, continuity and contingency planning; supply chain management and disclosure.  Among other things, the guidance cautioned companies about the risks of taking short-term measures to cut costs that might compromise worker wellbeing or health and safety and the challenges that widespread and unexpected disruption of supply chains due to the virus would create for monitoring environmental and social responsibility among suppliers.

Guidance published by Business & Human Rights (“BHR”) and Semilla tracked the recommendations of the IHRB by calling on companies to apply the human rights due diligence framework to Covid-19 crisis management and suggested that companies should be prepared to undertake prevention, mitigation and remediation measures for one or more of the following risks and impacts associated with worker health and safety and employment relationship:

• Impacts on workers’ health resulting from exposure to the virus that would require establishment of personal prevention measures, provision of protective equipment and assessment of which workers must actually be present in the facilities to effectively continue operations
• Risky working conditions that should be addressed through social distancing and masks, cleaning, regulation of common areas in the workplace and dissemination of information regarding personal hygiene
• Possible barriers to workers’ access to the health system which should be addressed by verifying health care coverage available to workers arising out of the employment relationship
• Risk of underreporting of illness due to fear of discrimination which should be addressed by establishing an internal atmosphere of trust and support so that workers are comfortable reporting symptoms of the virus and not reporting to work when they feel ill or need to care for others who have contracted the virus
• Work overloads as a consequence of a reduction of the number of workers present in the workplace or downsizing the size of the organization which should be mitigated by attention to legal requirements on working time; changes to production speed and goals to allow sufficient time for rest, cleaning workspaces and learning to do new tasks due to the absences of others with specialized skills; and limiting production and other operational activities to truly essential items (and managing demand for those items by placing limits on the number of units that customers can purchase)
• Impacts resulting from the sudden change in physical working conditions for remote workers and their families which require attention to work-life balance challenges for remote workers, particularly those workers who must care for others in their homes while working, physical and mental health of remote workers, Internet costs and other expenses of working remotely and protection of personal and proprietary data
• Possible impact on the right to privacy resulting from the implementation of new technologies in the employment relationship including facial recognition cameras, temperature measures and monitoring of remote workers
• Risk of termination or substantial change in the employment relationship (e.g., furloughs or conversion to part-time status) which should be addressed through collective bargaining and other worker consultation mechanisms, fair and staggered transitions of status, assistance with access to social security mechanisms and special attention to workers with informal or temporary contracts and self-employed workers

BHR/Semilla counseled companies to communicate the findings of their risk and impact assessments and the measures that have been adopted to workers and other stakeholders, ensuring that the information is readily accessible for all groups of workers; establish participation mechanisms that allow workers to make suggestions, provide input and report problems; appoint and train responsible personnel to manage the measures selected for addressing the risks and impacts associated with the virus; and dialogue closely and continuously with all actors who can assist in understanding the risks and impacts and provide meaningful input on the effectiveness of the measures taken by the company.  In its self-assessment tool designed for helping companies respond to the Covid-19 crisis the United Nations Development Programme (“UNDP”) focused on various aspects of the employment relationship such as preparation of plans for laying off or furloughing workers in a compassionate manner with adequate compensation and procedural safeguards, ensuring that workers who contract the virus or need time off to care for family members who have become ill are not discriminated against when employment-related decisions are made, providing flexibility in working arrangements where feasible and recognizing the special needs and challenges for women and members of other vulnerable groups.  The UNDP also called on companies to update their formal emergency preparedness plans to incorporate protocols implemented in response to the Covid-19 crisis.

This article is an excerpt from Alan Gutterman’s forthcoming book on Business and Human Rights to be published by the Business Law Section of the American Bar Association in the fall of 2020 and further information is available at the website of the Sustainable Entrepreneurship Project. Sources for this article included Respecting Human Rights in the Time of the Covid-19 Pandemic: Examining Companies’ Responsibilities for Workers and Affected Communities (Institute for Human Rights and Business, April 2020), Covid-19 and Responsible Business Conduct (OECD Centre for Responsible Business Conduct, 2020); Covid-19: Business and Human Rights (Business & Human Rights/Semilla, April 2020); and Human Rights Due Diligence and Covid-19: A Rapid Self-Assessment for Business (United Nations Development Programme and Business and Human Rights),