The COVID-19 pandemic has profoundly impacted workers in almost all sectors around the world. Healthcare workers have been among those most affected — contracting the virus at high rates, losing colleagues, witnessing the deaths of many, and working under extreme conditions brought about by collapsing healthcare infrastructures and inadequate medical supplies and personnel.
Healthcare workers have not only been impacted directly and indirectly by the virus, but also by governmental and legal responses. In a number of countries, laws have been enacted that have restricted or completely suspended the labor rights of healthcare workers during the pandemic.
The International Labor Organization (ILO) plays an important normative and standard-setting role in labor law issues. During the pandemic, their statements have generally provided only broad guidelines that have taken a permissive approach to compulsory labor, stating that “compulsory labor does not include work or service in cases of emergency.” The ILO needs to clarify their standards on labor law restrictions for healthcare workers during public health emergencies to protect this sector, and to foster trusting relationships between workers and healthcare systems. Following the WHO designation of 2021 as the “Year of Health and Care Workers,” for the protection of “health and care workers’ rights, decent work and practice environments,” these standards are more important than ever before.
Legal Responses That Infringed Labor Rights
State of emergency declarations have been used widely to suspend certain rights, privileges, and procedures to protect communities from the spread of COVID-19. In many of these declarations, the right to conduct strikes or walkouts was suspended for essential workers. In Slovakia, for example, the state of emergency in March 2020 was passed “to impose a duty of work to ensure the provision of health care and to prohibit the exercise of the right to strike by certain workers.” The state of emergency lasted almost a year, meaning that healthcare workers could be compelled to work under extreme conditions throughout most of the pandemic.
These legal responses represent attempts to balance two sets of conflicting governmental obligations and priorities. On the one hand, governments are obligated to protect the health of their citizens and to ensure that there are adequate numbers of health and care workers to accomplish this goal. On the other, governments are required to respect the labor rights of workers and to create long-term investment in healthcare infrastructures and workforces.
While some countries were keeping essential workers at their jobs by limiting their labor rights, other countries recognized the burden that workers were taking on and provided additional support to help them keep working. In Italy, a “babysitter bonus” of up to 1,000 Euros (the equivalent of $1,104) was introduced to enable health sector workers to pay for home-based childcare. In Austria, Belgium, Czech Republic, Denmark, France, Germany, Monaco, Netherlands, Norway, and the United Kingdom, where childcare facilities and schools have generally been closed, some facilities remain open, with a skeleton staff, to look after the children of essential service workers. Germany has also increased access to childcare benefits for low-income parents, while South Korea has issued vouchers for 2.4 trillion Won (the equivalent of $2 billion) to low-income households as they shift from child daycare to homecare. While this demonstrates that some countries have taken important initiatives to improve labor and working conditions, there is a critical role for international standard setting to ensure that good practices become the baseline across the board.
ILO Statements and Reactions
Legally, these responses were permissible, based on the broad standards referenced by the ILO. The Forced Labour Convention (1930) does not include work or service in cases of emergency in its definition of compulsory labor, and therefore does not prohibit its use. The ILO has interpreted this as including “an epidemic that would endanger the existence or the well-being of the whole or part of the population.”
The ILO did note, however, that “the measures taken should be limited in time and scope to what is strictly required to meet the specific emergency situation.” Some laws that restricted labor rights may not have been sufficiently tailored or limited to meet these specifications.
While some restrictions may have conformed to the standards set out by the ILO — making them legally permissible — it is important to question whether these restrictions were ethically permissible. While there may be situations in which it is unforeseeable that an emergency may require abridging certain rights, the health care shortages in this pandemic were not unforeseeable. Many experts and international bodies have been raising alarm bells for years about understaffed health care systems and the insufficient progress on creating a robust and resilient health care workforce. Healthcare workers during COVID-19 bore the brunt of state failures to take action on creating long-term solutions for healthcare staffing.
Building a Resilient Healthcare Workforce
The pandemic has shed light on the importance of building robust health infrastructure, and a recent report indicated that the creation of a resilient and capable healthcare workforce around the world is critical for promoting epidemic preparedness and responding to emerging pathogens. The WHO has also identified increasing the size of the healthcare workforce as an essential step towards achieving Universal Health Coverage. To achieve these goals, 18 million more health workers are needed by 2030, primarily in low and lower-middle income countries.
Shortsighted policies on healthcare worker conditions are resulting in healthcare professionals leaving the field in droves — due to pandemic burnout, post-traumatic stress disorder (PTSD), and mistreatment at various levels of the healthcare system. This exodus not only risks moving the world further away from our goals, but also indicates that our treatment of healthcare workers during the pandemic needs to serve as a lesson for future outbreaks.
To ensure that healthcare workers are treated fairly and ethically both leading up to, and during the next pandemic, we need to make effective use of the international standard-setting bodies, particularly the ILO, to ensure that pressure is placed on states to conduct proper planning and staffing.
As we look towards the inevitable global health challenges in our future, we should not forget about the critical role that labor law can play in preparedness. If we are to come out of this crisis with more equitable societies we must think about how to better protect healthcare workers post-COVID-19. We should encourage the ILO to set international legal standards that require states to mitigate any future need to compel healthcare labor by prioritizing training and capacity-building in the workforce. By emphasizing planning and preparedness, states can focus on attracting and retaining healthcare workers and rebuilding the trust that was lost during COVID-19.