코로나 팬데믹 시대의 외국인근로자의 건강권 보호 (The Protection of Foreign Workers’ Right to Health in the COVID-19 Era)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 32권 / 4호 / 181 ~ 210페이지
· 저자명 : 김슬기

초록

Health is the most fundamental condition for human survival. For human dignity, the right to health should be guaranteed at least in the national dimension for all the people staying in a country regardless of their nationalities. In Korea, foreign workers are highly likely to be exposed to the risk of diseases and disasters in poor working conditions. In this aspect, it is more required to apply a health security system to such foreign workers during their stay. In the COVID-19 pandemic situation, foreign workers’ right to health is put in danger. Although the government’s policy is fulfilled to protect their right to health, it has some issues like violation of human rights. In this circumstance, this study tried to look into the legal system for guaranteeing the right to health of foreign workers with simple skills, who account for the largest percentage in Korea but have their right to health put in danger relatively, and to find the problems of the system and any improvement plan in terms of legal policy.
The right to health is recognized according to international rules, including Constitution of the World Health Organization (WHO), the Universal Declaration of Human Rights, and the International Covenant on Economic, Social and Cultural Rights. It means the right to enjoy health in the most reachable level and the right of all human beings regardless of nationalities. Accordingly, in the Constitution and domestic rules, National Health Insurance Act was established to prevent all the people’s diseases and injuries, and is applied to foreign workers. Industrial Accident Compensation Insurance Act is a system for protecting workers or their families by guaranteeing the employer's no-fault liability for workers’ occupational accidents in the national dimension. Industrial Accident Compensation Insurance Act is applied to non-registered foreign workers regardless of residence status. In accordance with Employment of Foreign Manpower Act, accident insurance responds to foreign workers’ death or diseases other than their occupational accidents.
Aside from such general right guarantee, the government performs special policies in the COVID-19 pandemic situation. One of them is to exempt public officials’ duty of notification for illegal aliens. Therefore, even if foreign workers illegally stay, they are allowed to have a COVID-19 diagnosis test and get vaccinated. In such a way, the blind spot of quarantine tries to be removed. Socially, when the supply imbalance of masks occurred, the government came up with a mask supply plan for controlling the limit of mask purchases. When foreign workers had mass infection, each local government gave an administrative order for the COVID-19 diagnosis tests on foreign workers. Some local governments restricted the employment of foreign workers who failed to receive a diagnosis test. That raised the issue of human right violation and discrimination based on nationalities. Korea Workers' Compensation and Welfare Service devised the work process plan for applying industrial accident compensation insurance to workers in the COVID-19 situation, and tries to support damage caused by COVID-19. Given that foreign workers face poor working conditions and have no Korean nationality, it is difficult for them to receive industrial accident compensation insurance.
To guarantee foreign workers’ right to health, it is necessary to change the health insurance criteria for foreign workers. In consideration of the financial difficulty that foreign workers have, it is required to lower the criteria of their national health insurance contribution as the self-employed, and to change it to the national health insurance as employees and thereby to share the burden of the contribution with employers. In other words, regardless of whether the employers of foreign workers register their business, it is necessary to make the foreign workers’ national health insurance contribution as employees. Associating foreign workers’ arrear of national health insurance premium with the limit of their extension of stay by the Ministry of Justice violates foreign workers’ right to work. The provision should be abolished. The government’s administrative order given to foreign workers for their COVID-19 testing also violates foreign workers’ human rights, for foreign workers are discriminated on account of nationalities. Therefore, the administrative order should be withdrawn, and the restraint and punishment for no execution of diagnosis tests should also be cancelled. It is necessary to come up with detailed guidelines about the criteria of foreign workers’ industrial accidents related to their work, including COVID-19 infection. By establishing the mitigation of the responsibility for proving occupational disasters and expanding a range of occupational disasters to the infection in a dorm, it is necessary to protect foreign workers as a socially disadvantaged class in the national dimension. In addition, if the Ministry of Health and Welfare expands the medical service support area for foreign workers, which is not included in the national system for guaranteeing the right to health, and applies the medical service support related to the aftereffects of COVID-19 to foreign workers, the service support makes it possible for foreign workers to live their quality of life in the minimum level.

영어초록

Health is the most fundamental condition for human survival. For human dignity, the right to health should be guaranteed at least in the national dimension for all the people staying in a country regardless of their nationalities. In Korea, foreign workers are highly likely to be exposed to the risk of diseases and disasters in poor working conditions. In this aspect, it is more required to apply a health security system to such foreign workers during their stay. In the COVID-19 pandemic situation, foreign workers’ right to health is put in danger. Although the government’s policy is fulfilled to protect their right to health, it has some issues like violation of human rights. In this circumstance, this study tried to look into the legal system for guaranteeing the right to health of foreign workers with simple skills, who account for the largest percentage in Korea but have their right to health put in danger relatively, and to find the problems of the system and any improvement plan in terms of legal policy.
The right to health is recognized according to international rules, including Constitution of the World Health Organization (WHO), the Universal Declaration of Human Rights, and the International Covenant on Economic, Social and Cultural Rights. It means the right to enjoy health in the most reachable level and the right of all human beings regardless of nationalities. Accordingly, in the Constitution and domestic rules, National Health Insurance Act was established to prevent all the people’s diseases and injuries, and is applied to foreign workers. Industrial Accident Compensation Insurance Act is a system for protecting workers or their families by guaranteeing the employer's no-fault liability for workers’ occupational accidents in the national dimension. Industrial Accident Compensation Insurance Act is applied to non-registered foreign workers regardless of residence status. In accordance with Employment of Foreign Manpower Act, accident insurance responds to foreign workers’ death or diseases other than their occupational accidents.
Aside from such general right guarantee, the government performs special policies in the COVID-19 pandemic situation. One of them is to exempt public officials’ duty of notification for illegal aliens. Therefore, even if foreign workers illegally stay, they are allowed to have a COVID-19 diagnosis test and get vaccinated. In such a way, the blind spot of quarantine tries to be removed. Socially, when the supply imbalance of masks occurred, the government came up with a mask supply plan for controlling the limit of mask purchases. When foreign workers had mass infection, each local government gave an administrative order for the COVID-19 diagnosis tests on foreign workers. Some local governments restricted the employment of foreign workers who failed to receive a diagnosis test. That raised the issue of human right violation and discrimination based on nationalities. Korea Workers' Compensation and Welfare Service devised the work process plan for applying industrial accident compensation insurance to workers in the COVID-19 situation, and tries to support damage caused by COVID-19. Given that foreign workers face poor working conditions and have no Korean nationality, it is difficult for them to receive industrial accident compensation insurance.
To guarantee foreign workers’ right to health, it is necessary to change the health insurance criteria for foreign workers. In consideration of the financial difficulty that foreign workers have, it is required to lower the criteria of their national health insurance contribution as the self-employed, and to change it to the national health insurance as employees and thereby to share the burden of the contribution with employers. In other words, regardless of whether the employers of foreign workers register their business, it is necessary to make the foreign workers’ national health insurance contribution as employees. Associating foreign workers’ arrear of national health insurance premium with the limit of their extension of stay by the Ministry of Justice violates foreign workers’ right to work. The provision should be abolished. The government’s administrative order given to foreign workers for their COVID-19 testing also violates foreign workers’ human rights, for foreign workers are discriminated on account of nationalities. Therefore, the administrative order should be withdrawn, and the restraint and punishment for no execution of diagnosis tests should also be cancelled. It is necessary to come up with detailed guidelines about the criteria of foreign workers’ industrial accidents related to their work, including COVID-19 infection. By establishing the mitigation of the responsibility for proving occupational disasters and expanding a range of occupational disasters to the infection in a dorm, it is necessary to protect foreign workers as a socially disadvantaged class in the national dimension. In addition, if the Ministry of Health and Welfare expands the medical service support area for foreign workers, which is not included in the national system for guaranteeing the right to health, and applies the medical service support related to the aftereffects of COVID-19 to foreign workers, the service support makes it possible for foreign workers to live their quality of life in the minimum level.

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