The UN Guiding Principles on Business and Human Rights (UNGPs) do not make explicit mention of specific rights such as the right to health or to responsibilities of business in emergency or other crisis situations. However, it is clear that the UNGPs expect businesses to undertake due diligence and assess impacts of their operations and conduct in terms of respect for all rights, including the right to health; to take all possible steps to mitigate any harms; to ensure that conduct does not cause or contribute towards harms; address risks identified as salient; and to enable the realisation of all rights, including the right to health, by using all forms of available leverage.
Addressing adverse human rights impacts requires taking adequate measures for their prevention, mitigation and where appropriate, remediation. Under the UNGPs, this encompasses:
• Making a public commitment to human rights by developing a human rights policy
• Embedding the policy in the business culture by making the policy known within the organisation and to partners, affiliates, associates, and sub-contractors
• Undertaking due diligence to ensure that the policy is implemented throughout the organisation. Due diligence includes:
– identifying and assessing actual and potential impacts of business operations and relationships on enjoyment of rights;
– integrating and acting on the findings across relevant functions within the organisation;
– tracking the effectiveness of measures and processes to know if they are working;
– communicating to stakeholders how the impacts are being addressed and what measures are taken to address adverse impacts; and developing a remedy to address grievances.
The corporate responsibility to respect human rights as set out in the UNGPs becomes more acute when companies operate in contexts where governments are unable to meet their obligations or are unwilling to do so. While companies may lack a mandate to address specific human rights concerns and may not have authority, capacity, mandate, or expertise to address complex challenges, they nevertheless often have resources and the ability to act quickly in ways that can make a positive difference in people’s lives during emergency situations.
Business should be guided by the principle of duty of care in responding to emergencies like COVID-19. Under human rights law, every individual is entitled to the protection of her/his human rights, making them rights holders. State actors who have a specific obligation to respect, protect, and fulfil those rights are commonly referred to as duty bearers. Duty of care is a concept from tort law, indicating where a party has a legal duty to act reasonably so as to avoid causing injury to other people who have reasonable expectation that the party will act responsibly. Failure to adhere to the duty of care may expose the party to civil or criminal liability.
In the current context, companies operating in countries where COVID-19 is virulent have a special duty of care towards their staff and others impacted by their activities. But in societies without adequate resources, they face enhanced expectations and bear a bigger responsibility to offer assistance to those who are affected. Past experience of companies that have had to deal with sudden, unexpected crises offer lessons for what can be done at present. These experiences include responding to natural disasters, outbreaks of disease, and armed conflict – none of which may be the result of business action but in each situation companies are expected to or called upon by governments and stakeholders to cooperate and assist by taking decisions that alleviate suffering and mitigate harm to human rights.
It must be stressed that all companies bear responsibilities towards their staff during emergency situations like the COVID-19 pandemic. That means a range of measures including providing safe and sanitary work conditions in situations where workers have no choice but to work from an office, workplace or any other facility other than their home. It means protecting workers from exposure to the virus by offering necessary tools, including equipment such as face-masks and disinfectants for staff members likely to encounter the general public as part of their work. It also means taking reasonable care to protect staff from contracting the virus through direct physical exposure to visitors and customers. This is particularly relevant for workers making deliveries for courier companies, workers in customer-facing situations, such as banks, supermarkets, and pharmacies, and workers in restaurants, including those offering takeout deliveries, besides many other businesses that require human interaction. Such protections should be offered to all workers, even those who are sub- contractors or employees of sub-contractors.
Where it is possible to work from home, and where a worker has the means and technology to work from home, companies should enable their staff to do so during the current crisis. That includes appropriate efforts to make available resources to work from home and assisting with steps needed to ensure safe areas to work from. For example, one of the largest employers in the world is Walmart, the giant American retailer. Its workforce is 1.5 million people. In response to the COVID-19 crisis, it has taken several measures to protect employees. These include: emergency leave policy to encourage workers who suspect they may be ill to stay at home; offering telehealth facility for staff; enhancing sanitary measures including installing plexiglass to prevent inadvertent or accidental sneezing by customers or employees to infect anyone when they are near the cash register; sanitisation of shopping carts; temperature measurement; masks and gloves for staff who want them; cash bonuses to hourly-wage workers and other measures to protect customers and communities.
One sector of obvious relevance to the current crisis is the pharmaceutical industry. The UN Office of High Commissioner for Human Rights and the World Health Organization have published a fact sheet which speaks of pharmaceutical companies’ responsibility towards the right to health. Some companies, the publication notes, “have developed their own human rights policies, programmes and tools to incorporate human rights into business operations, some of which deal with the right to health.” While not specific to situations such as an outbreak of disease, the publication reiterates that companies should take effective measures to reduce harm and where practical to alleviate suffering.
In the present context, it means pharmaceutical companies in the race to develop a COVID-19 vaccine must be guided by international standards and make their discoveries publicly available so that all individuals affected by the crisis can benefit and not only a select few due to their nationality, ethnicity, religion, wealth, or any other status. The joint call by sixty UN human rights mandate holders specifically stated, “When the vaccine for COVID19 comes, it should be provided without discrimination. Meanwhile the human rights- based approach is already known as another effective pathway in the prevention of major public health threats.
There are legitimate concerns that wealthy countries will attempt to acquire controlling stake in the intellectual property of discoveries made in the private sector to treat COVID-19. It should be noted however that most pharmaceutical inventions, even in the private sector, rely on extensive contacts with public bodies, including sharing of intellectual knowledge and research and depend on publicly-available resources and research. While companies have the right to earn profits from their intellectual property, governments around the world must work together to make a vaccine to combat COVID-19 universally accessible at low or no cost. To be sure, there will be a gap between what private companies expect and what states are prepared to pay, which will need to be filled through international cooperation.
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