Client Alerts

Client Alert: Business and human rights in a global pandemic

Volterra Fietta Client Alert
9 June 2020

The COVID-19 epidemic, the measures taken by governments in numerous countries and the ensuing global economic crisis entail significant changes to the operating environment for many companies.  The pandemic and its economic consequences have in many situations exposed and amplified existing human rights problems.  Companies will need to consider how their responses to the immediate crisis may impact human rights.  But this is also the time for companies to review how the pandemic itself has reshaped communities where the company operates and how business operations interface with those communities in these new circumstances, taking into account its effect on new vulnerabilities caused by the global crisis.  Governments, too, have a role to play by reviewing, adapting and updating available guidance.

Ensuring a safe return to work

As many countries ease out of lockdown, businesses will need to consider how to safely return to work.  Implementing protective and preventive measures may require significant changes to work place processes and practices.

A number of international organisations have issued useful guidance.  The United Nations Development Programme (the “UNDP”) has designed an accessible human rights due diligence tool specifically adapted to COVID-19 to help businesses consider and manage human rights impacts.  Similarly, the International Labour Organization (the “ILO”) has recently issued guidance on a phased and safe return to work, addressing work place risk assessments and implementation of preventive and protective measures.

These guidance documents draw on human rights instruments and ILO conventions and emphasise employers’ responsibility for occupational health and safety, risk assessment and mitigation measures, such as remote working, improved ventilation, physical barriers, distancing measures for both employees and customers and enhanced work place hygiene.  Importantly, employers should ensure that there is no discrimination between workers, either in rehiring processes or in the provision of health care, medical supplies or protective equipment.

Governments have a role to play to assist businesses in ensuring a safe return to work.  Because the conditions may differ considerably across countries and sectors, the ILO recommends that competent national authorities adapt these measures to national situations and the circumstances in specific sectors, drawing on applicable ILO conventions and their corresponding ILO recommendations.

Governments are advised to consider also the long-term effects the crisis may have on labour markets.  The 2017 ILO Employment and Decent Work for Peace and Resilience Recommendation (No. 205) recommends that in recovering from crisis situations, governments should review and reinforce labour legislation and systems of labour administration and inspection.

Finally, governments may wish to collect data on COVID-19 cases with a view to analysing how the virus spreads in work places following a return to work.  Such data will not only assist governments in making evidence-based public health decisions, but also in identifying breaches of return-to-work protocols and deficiencies in preventive and protective measures.

Enterprises should consider their specific role, context and potential impact

In responding to the crisis and in considering the potential human rights impacts caused by business operations, enterprises will need to assess the difficulties arising in their specific operating environment.  For example, particular arrangements may be needed for high-risk employees, but in certain parts of the world, companies may struggle to identify these workers because of a lack of reliable medical history.  Companies with migrant workers within their organisations or supply chains may wish to consider the additional guidance issued by the International Organization for Migration (the “IOM”).  The IOM encourages business enterprises at this time to reinforce their policy commitments with additional monitoring and due diligence to ensure that guidelines are adhered to in supply chains, where vulnerability has increased as a result of the global crisis.  Another unfortunate reality in certain parts of the world is labour by under-aged persons.  The UNDP has underlined that in returning to work, companies should ensure that young workers and others who are limited in their ability to give informed consent are not engaged in hazardous working conditions, including exposure to COVID-19.  It also provides that companies should prevent child labour from being used to fill gaps resulting from the absence or reduction in the number of healthy adult workers.

Enterprises may also need to consider particular potential impacts of their products or their role in combating the pandemic.  For example, tech companies developing applications to monitor the spread of the virus should address the human rights risks of intrusive data collection and surveillance.  The financial sector may need to address the impact of rigidly enforcing loan or consumer obligations because of the large-scale impacts.  Companies in the pharmaceutical or medical equipment sectors may face a strong societal expectation that their products remain publicly available and financially accessible.

Impact on supply chains and the need for human rights due diligence

Under the UN Guiding Principles on Business and Human Rights, the responsibility of businesses extends beyond their own activities to include their value chain; and enterprises are expected to exercise their influence over their business relationships.  Notably, supply chain work conditions have deteriorated in a number of manufacturing industries, where a shortage of materials and decreases in demand from retail have left workers redundant with few protections.  In addition to exercising leverage on business partners where appropriate, enterprises considering disengagement of suppliers and the cancelling of orders may need to factor in the impact on workers’ rights down the supply chain.

It is also advisable that business enterprises conduct post-crisis assessment on how communities where they operate have been impacted at a structural or individual level by the epidemic and its consequences.  While the self-assessment tools and checklists discussed above provide a good start, the UNDP recommends companies to take immediate steps towards a fully-fledged human rights impact assessment, in response to COVID-19’s immediate and long-term effect on human rights in their operations and supply chains. The immense impact of the pandemic will for most businesses constitute a change to the operating environment which should prompt businesses to review and update their human rights due diligence and risk analysis.

This may however present formidable challenges for many companies.  Importantly, international travel restrictions and social distancing guidelines impede on-site audits.  Businesses will need to devise remote due diligence procedures, draw more on locally operated grievance mechanisms and, where appropriate, connect stakeholders with local service providers and emergency assistance.

Volterra Fietta will host a free virtual seminar later in July 2020 to consider these issues further.

For further information about these developments and other issues related to Business and Human Rights, please contact Graham Coop (Graham.Coop@volterrafietta.com) or Maria Fogdestam-Agius (Maria.Fogdestam-Agius@volterrafietta.com).