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Respecting Human Rights: In Sickness And In Health

August 16, 2020

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By Alyssa Ofstein

The Bay Area is unrecognizable two months into quarantine as residents stay home to mitigate the spread of COVID-19.

I hail from the East Coast, and in the days before the City of San Francisco issued its public health orders, I was eagerly preparing for a long weekend to see my family. Instead, I cancelled my flight and embraced the flood of concerned messages from loved ones affirming the decision to practice social isolation. I now watch from across the country as family members fall ill, lose their jobs, and sew masks.

The last time I cancelled a flight home was during the November wildfires of 2019 because I was unable to take off work. As headlines proclaimed that the air quality in Northern California had fallen to the worst in the world and schools, colleges, and public transit shut down, the coffee shop where I was employed stayed open. After eight months working part-time (at 39.5 hours a week) for minimum wage and tips, I’d accrued $23 of paid sick leave. Set on a promotion to barista, I was scared that if I asked for additional time off due to the smoke caused by the wildfires, I’d risk my promotion or the ability to support myself altogether if I were let go. When I prompted my manager about respirator masks, he suggested employees bring their own “if they could find them.” When I mentioned feeling dizzy after walking the short distance from my home to work, he said:

“YOU CAN ONLY LEAVE WORK EARLY IF YOU VOMIT, WE ARE SHORT-STAFFED AND NEED YOU HERE.”

So, I stayed, as gray, soot-stained air flooded the shop, blurred my vision, and elicited coughs from customers and coworkers alike.

In the midst of the COVID-19 outbreak, I find myself in a position of privilege I never thought I would—one with a consistent income, access to health benefits, and paid time off. As food, mask and cleaning supply shortages spread to the Bay Area, my team is sharing messages like “please stay safe” and “hang in there.” I am thankful and fortunate to be working at a business and human rights advisory, where both my right to health and to a safe working environment are respected. More importantly, the nature of my employment has changed such that I can continue to do my job from behind a keyboard. With this in mind, it’s crucial to highlight that the rights enshrined in the Universal Declaration of Human Rights applied to me as a service worker just as they apply to me now as a human rights analyst—these are rights inherent to my human condition.

According to the UN Guiding Principles on Business and Human Rights (UNGPs), it is my government’s duty to protect my rights and my employer’s to respect them—independent of my occupation and my government’s ability and/or willingness to protect those rights. The UNGPs do not discern between times of sickness and health or government failure to provide the necessary social protections to address a pandemic like COVID-19. When it comes to supporting their workforce, businesses may even have a relative advantage in responding to COVID-19 more rapidly than governments. This is modeled by companies that have readily implemented necessary financial protections for their employees, filling in gaps left in their workers’ contractual, legal, and societal protections.

As a human rights analyst, I appreciate the speed and intention with which some companies have responded. As a former service worker, I have reservations that these methods will dissipate after the pandemic is resolved, providing short-term relief for workers, rather than necessary reform. The vulnerabilities the COVID-19 pandemic is surfacing are exacerbations of the same human rights harms that many service workers and those with precarious forms of employment face every day.

The daily reality of going in to work sick, putting your health and the health of others at risk because you can’t afford not to is the effect of a lack of labor protections from both governments and employers. Moving forward, COVID-19 should serve as a lesson for businesses that passive inaction around paid sick leave, accessibility, and their workers’ right to health cannot continue to persist until emergencies demand change. We should heed the human rights framework to ensure that the great steps companies are now taking remain as permanent practices rather than one-time offerings. This includes:

1. PROACTIVELY SURFACING LABOR RIGHTS RISKS

As COVID-19 intensified risks that pre-dated its outbreak, companies that have proactively managed human rights risks are likely more equipped to respond to the crisis at hand. That’s because human rights due diligence includes evaluating sick leave, time-off, and assessing living wage standards. Appropriate due diligence involves assessing how corporate policies impact part-time, hourly, contract, and gig-economy workers. In conducting due diligence, companies identify areas of potential risk, conduct stakeholder engagements, assess their most salient impacts and then develop a strategy for mitigating risk.

Starbucks is a real-world example of how proactive due diligence can prepare companies for launching an emergency response. Since 2018, Starbucks has had a nationwide policy granting employees one hour of sick leave for every 30 hours worked. Starbucks is now in a position where sick leave benefits have already been included in its cost models, setting a strong foundation for managing risks during the COVID-19 pandemic. Demonstrating leadership, Starbucks has expanded their catastrophe pay program to cover up to one month of financial support for potentially diagnosed partners, regardless of whether they work during the COVID-19 crisis or not. Looking ahead, companies should ensure that human rights risk management is embedded into their operations.

2. PROVIDING IMMEDIATE TREATMENT, WITH LASTING COMMITMENTS

For companies that are confronting these issues in light of COVID-19, the key is to act with urgency, while committing to sustainable changes that will better align company policy and practice with respecting worker’s rights moving forward. For instance, companies should actively implement and improve paid sick leave to meet the needs of their part-time, hourly, contract, and gig-economy workers. Mental health, in addition to physical health, should be provided for. These changes should be codified into indefinite policies to continue their positive impacts beyond the pandemic. Leadership is modeled by Darden restaurants, which immediately instated a policy of providing paid sick leave for all of its hourly workers. 

Likewise, while adding an emergency fund or relief benefit to support the company’s workforce at this time is essential, paying a living wage and instituting other benefits like medical care to increase low-wage workers social safety net are important strategies for rights-respecting best practice. Amazon took this approach by raising its wages. For companies struggling to stay afloat, this may require incremental change over time. For example, Target set a goal years ago to pay $15 an hour by 2020, which it reached this year—fortunately in time to respond to the COVID-19 pandemic. Looking forward, companies can consider engaging their joint and licensed partners to strategically phase in contractual agreements around paid sick leave and fair wages beyond their owned-and-operated facilities.

Companies that have the capacity to should mandate and expand work-from-home policies and provide income alternatives to low-wage workers. Companies can also consider altering operating hours and scheduling shifts to minimize employees’ risk of exposure. When operations normalize, companies should consider extending these types of accommodations to nursing and working parents, workers with disabilities, and others with vulnerabilities necessitating alternative working environments and patterns.

3. RESPECTING AND PROMOTING GOVERNMENT PROTECTIONS IN SICKNESS AND IN HEALTH

To mitigate risks related to future crises and ensure long-term respect for worker’s rights, businesses should support government efforts to protect those rights. Given that governments rely on tax revenue to fund essential public services to fulfil rights such as healthcare, companies should ensure they are paying fair taxes, and conduct tax policy and practice impact assessments. Learning from COVID-19, businesses should work with unions and lobby for increased protections for low-wage workers, such as raising the minimum wageand mandating paid sick leave.