By: Gregorio Y. Narvasa, II

COVERAGE: Establishments and employers in the private sector that administer COVID-19 vaccines in the workplaces.[1]

For brevity, “employer” in this opinion shall mean establishments and employers in the private sector.

  1. Is the employer required to supply vaccination to its employees?

The answer is no. Actually, Labor Advisory No. 3, Series of 2021 (LA 3, s. 2021) issued by the Department of Labor and Employment (DOLE) is silent on this. What it however provides is that “employers shall adopt and implement the appropriate vaccination policy in the workplace as part of their occupational and safely and health program.”[2]

  1. Is the employer allowed to procure Covid-19 vaccines for its employees?

Yes, under LA 3, s. 2021, “employers may procure Covid-19 vaccines, supplies, and other services. They may also seek the support of the appropriate government agencies in the procurement, storage, transport, deployment, and administration of Covid-19 vaccines.[3]

The advisory requires that if employers decide to provide vaccines to their employees, they shall adopt and implement an appropriate policy in the workplace.[4] The use of the word “shall” in the advisory makes the adoption and implementation of a vaccination policy mandatory, this is if the employers will provide vaccination to its employees.

  1. What are the requirements in the vaccination policy to be implemented by the employers under LA 3, s. 2021?

LA 3, s. 2021 does not provide the form and substance of a vaccination policy to be employed by the employers; however it provides limitations to such a policy, which are:

  1. The policy must be consistent with the guidelines issued by the Department of Health and the Inter-Agency Task Force (IATF) in accordance with existing laws, rules, and regulations.[5]
  2. No cost of vaccination in the workplace shall be charged or passed on, directly or indirectly, to the employees.[6]
  3. Any employee who refuses or fails to be vaccinated shall not be discriminated against in terms of tenure, promotion, training, pay, and other benefits, among others, or terminated from employment. No vaccine, no work policy shall not be allowed.[7]
  1. How can the employer procure Covid-19 vaccines?

Under Section 5 of Republic Act No. 11525,[8] employers who wish to provide Covid-19 vaccines to their employees “may procure COVID-19 vaccines only in cooperation with the DOH and the NTF through a multiparty agreement, which shall include the DOH and the relevant supplier of COVID-19 vaccine.”

  1. Who shoulders the cost of the vaccination of the employees?

For vaccines that are provided by the employers in the workplace, it is the employer’s. No cost of vaccination in the workplace shall be charged or passed on, directly or indirectly, to the employees.[9]

  1. What is the rationale in adopting a vaccination policy in the workplace?

There are two main and synergistic reasons why an employer would adopt a vaccination policy. The first is to provide a safe and healthy work environment in the workplace and the second is to maximize operational efficiency where all its workers, presumably all vaccinated, are able and safe to return to work without fear of contracting the virus and spreading it in the office. This can be achieved only if vaccination of all workers is mandatory.

As there is a duty on the part of the employers to keep the workplace safe, they have the correlative power, or management prerogative, to enforce rules, policies and programs to keep a safe and healthy environment in the workplace. With the realities of the Covid-19, which have disturbed and even claimed lives,[10] it would not be unreasonable for employers to impose mandatory vaccination of all its employees.

However, the employers’ management prerogative is not absolute and is limited by laws, and labor policies and issuances. As will be explained below, employers cannot compel mandatory vaccination of all its employees.

  1. Is the vaccination of all workers mandatory?

No, under LA 3, s. 2021, the employers “shall encourage all their employees to get vaccinated,”[11] employees who refuse to be vaccinated cannot be forced to do so, and they “shall not be discriminated against in terms of tenure, promotion, training, pay, and other benefits, among others, or terminated from employment. No vaccine, no work policy shall not be allowed.”[12]

  1. Are the employers responsible to shoulder the medical expenses of the employees who refuse to get vaccinated and later on contract COVID-19?

DOLE Labor Advisory No. 04, series of 2020 provides the answer to this question. “In the event that the worker is not qualified to avail of the benefits under SSS or Philhealth due to the fault of the employer, the employer shall shoulder all the medical expenses until full recovery.”

In other words, the general rule is that employers are not liable to pay for the treatment and medical expenses of its employees who have contracted Covid-19. They will, however. be liable for all the medical expenses of their employees who have been infected by the virus ONLY if they have not fully paid their contribution to the employees’ SSS or Philhealth accounts.

Note that under LA No. 4, s. 2020, the employers shall still be liable for payment of the medical treatment of their employees (who have already been vaccinated) with “breakthrough infections”[13] if the worker cannot avail of their SSS or Philhealth benefits due to the employers’ fault.

  1. In case an employee refuses to take the vaccine once made available by the employer, any event requiring that he/she be put in quarantine will not be compensated by the company whether as sick leave or vacation leave?

Again, any employee who refuses or fails to be vaccinated shall not be discriminated against in terms of tenure, promotion, training, pay, and other benefits, among others, or terminated from employment.

Under DOLE Labor Advisory No. 11, series of 2020[14], absences of the employees shall be treated as follows:

  1. Upon the option of the employees, their absences can be charged to their allowed leaves in the office.
  2. Should the employees choose not to credit their absences to their leaves, the “No Work, No Pay” policy will apply.
  3. Once their leaves are consumed, the “No Work, No Pay” policy will apply.

It must be remembered however, that, if the employers wish to vaccinate their employees, the former must adopt a company employee policy. If benefits are granted to vaccinated employees that are better than the above described “No Work, No Pay” policy, said better benefits must be equally granted to employees who refused to be vaccinated.

  1. In case an employee refuses to take the vaccine once made available by the employer, can the employee be terminated from employment?

No, any employee who refuses or fails to be vaccinated shall not be terminated from employment.[15]

  1. In case an employee refuses to take the vaccine once made available by the employer, will the medical expense of such employee who contracts Covid-19 be covered under the company medical plan?

 Yes, it will. Benefits under the company medical plan shall be made available to all its employees, whether or not they have agreed to or refused to be vaccinated. Again, any employee who refuses or fails to be vaccinated shall not be discriminated against in terms of tenure, promotion, training, pay, and other benefits, among others.

  1. If vaccine will be made available by the employer or principal to the employees of its contractors, can those who refuse to take the vaccine be denied entry to the principal’s workplace?

 The rules and policies expressed in LA No. 3, s. 2021 apply only to the employees of the employers. As the employees of the principals’ contractors are not the principals’ employees, technically, the principals are not bound by said rules and policies insofar as the contractors’ employees are concerned.

However, in a clarificatory letter of the DOLE to one of our clients, in answer to the same question, Assistant Secretary Ma. Teresita S. Cucueco, MD, citing Section 12 of RA 11525 and LA No. 3, s. 2021, declared “barring entries of contractor’s workers who refused to be vaccinated to the principal’s premises is a clear case of work discrimination.” (italicized word added for clearer understanding)

A reading of the provisions of RA 11525 and LA No. 3, s. 2021 however does not show that they apply to employees of contractors assigned in a workplace of a principal. Apparently, AC Cucueco, in her letter, based the opinion on a general notion of the meaning of discrimination in the workplace.

Hopefully, the DOLE may eventually come out with clear and direct rules and policies affecting contractor’s employees assigned to private establishments and who refuse to be vaccinated.

  1. For the safety and health of all the workers in the workplace, what can the employers do in the workplace to employees who refuse to be vaccinated?

 Again, with the duty of the employers to keep a safe workplace, and their management prerogative  to fix and enforce rules, policies and programs to maintain a safe and healthy workplace, the employers can require that its employees who refuse to be vaccinated will be subject to special regulations, such as being moved and segregated to different or secluded areas in the workplace, and being restricted in their movement in the workplace. In truth, such rules shall be more for the protection of the workers who refused to be vaccinated.

However, such special rules for those employees who refused to be vaccinated must:

  1. be reasonable,
  2. meet the objectives of the adopted rules,
  3. be done in good faith,
  4. be incorporated in the vaccination policy adopted by the employer, and
  5. not be discriminatory against the employee in terms of tenure, promotion, training, pay, and other benefits, among others.

Footnotes:

[1] Labor Advisory No. 3, Series of 2021

[2] Sec. II, 1st paragraph, Labor Advisory No. 3, Series of 2021

[3] Sec. II, 2nd paragraph, Labor Advisory No. 3, Series of 2021

[4] Sec. II, 1st paragraph, Labor Advisory No. 3, Series of 2021

[5] Ibid.

[6] Ibid.

[7] Sec. III, Labor Advisory No. 3, Series of 2021

[8] Otherwise known as “COVID-19 Vaccination Program Act of 2021”

[9] Sec. II, 3rd paragraph, Labor Advisory No. 3, Series of 2021

[10] Cited from the Oratio Imperata

[11] Sec. III, Labor Advisory No. 3, Series of 2021

[12] Ibid.

[13] People who still contract Covid-19 despite having been vaccinated.

[14] See also Labor Advisory No. 4, Series of 2020, Sec. III

[15] Sec. III, Labor Advisory No. 3, Series of 2021

FNS

FNS


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