Mandatory COVID-19 Tests for Foreign Workers Constitute Discrimination against Non-Citizens
-NHRCK urges authorities to establish non-discriminatory COVID-19 prevention measures that respect the rights of individuals–
The National Human Rights Commission of Korea(Chairperson Young-ae Choi) has decided that the administrative order of some local governments that requires foreigner workers to undergo COVID-19 testing constitutes discrimination against foreigners and recommended the heads of the Central Disaster and Safety Countermeasures Headquarters as well as local governments to devise and enforce non-discriminatory pandemic control measures that are based on human rights principes.
The unprecedented COVID-19 crisis has caused a dramatic shift in how we consider the value of equality. We learned from the experience of COVID-19 that: 1) anyone can be subject to hatred and discrimination; 2) establishing an effective human rights protection mechanism that leaves no one behind is in the best interests of our community; and 3) achieving equality for all is a challenge of our times.
However, with the recent increase in confirmed cases at highly crowded workplaces with a large percentage of foreign workers, the Central Disaster and Safety Countermeasures Headquarters introduced COVID-19 prevention measures for foreign workers and local governments enforced an administrative order that makes it mandatory for migrant workers to get COVID-19 tests. Some local governments, in particular, put in place measures that require employers to hire foreign workers only when they provide a proof of negative test results, which constitutes employment discrimination against individuals infected with COVID-19.
The Commission reviewed relevant provisions of the Constitution, the National Human Rights Commission Act, international human rights norms including the International Convention on the Elimination of All Forms of Racial Discrimination and the UN guidance on COVID-19, which was published to prevent unintended effects of public health policies of States such as discrimination and human rights violations, to make a decision as to whether the administrative measures taken by local governments is a violation of the right to equality of migrants. The Plenary Committee of the Commission at its meeting on March 22 decided that the local authorities should immediately withdraw the administrative orders that discriminate foreign workers without reasonable grounds as COVID-19 can affect anyone regardless of their nationality.
The Commission appreciates the public health authorities' tireless efforts to halt the spread of COVID-19, but is concerned that the measures that separate and distinguish certain groups without reasonable grounds would discourage active participation in pandemic control measures and stigmatize foreigners as suspected cases that require COVID-19 testing, posing a threat to the safety of the entire community rather than fulfilling the initial purpose of tackling the spread of the pandemic. It reiterates the necessity of enacting equality law, which will provide a basis and guide for policy-making of central and local governments.
In addition, the Commission recommended the heads of the Central Disaster and Safety Countermeasures Headquarters and local governments to take measures to improve living and working conditions of foreign workers who are at a high risk of COVID-19 infection and protect their right to a safe work environment.