Metro Manila marked the first anniversary of its covid-19 quarantine on 15 March. And now, the national capital region and other nearby provinces (the NCR Plus) have been placed anew under modified enhanced community quarantine (MECQ) after being in enhanced community quarantine (ECQ) in the past two weeks. This author can still vividly recall the metropolis’ deserted streets when ECQ, the strictest quarantine regime, was first imposed last year. Initially, only business establishments belonging to the essential industries were allowed to operate. Even then, not all employees were permitted to report for work due to safety reasons, not to mention the hardships that arose from public transportation suspensions.
To say that the country came to a halt during this period is an understatement. Eventually, businesses and workers alike accepted the grim reality that everyone had to sacrifice and adjust until the current health crisis was controlled or ended.
Thanks to the wonders of modern science, the development of covid-19 vaccines came quickly. The distribution of vaccines had already begun late last year, and the rollout has now reached more countries, including here in the Philippines, where inoculations have started. For this reason, businesses have become more optimistic recently, and everyone is eager to rebound from this health and economic nightmare.
But despite the hardships the pandemic has caused, a significant number of individuals has expressed reservations about being vaccinated. In the workplace, one crucial question is raised: Can employees refuse to receive the covid-19 vaccine?
While employees are eager to return to their regular work routine, it is a simple reality that some have their reasons for refusing the jab. The constitution and laws guarantee an individual’s right to freedom, especially on matters relating to health. The state has the mandate to regulate workers and employers’ relations in affording complete protection to labour.
As it is now, the employer is merely required to provide for employee testing when needed, and to maintain a safe work environment. Also, there is no law or government issuance that mandates the covid-19 vaccination of employees in the workplace. On the contrary, the Department of Labour and Employment (DOLE) recently issued Labour Advisory No. 03 on 12 March, which essentially prohibits a “no vaccine no work” policy.
Employers have the management prerogative to impose any rules and regulations for business operations, including ensuring a safe and healthy workplace and the integrity of products that they will offer to the public. Accordingly, the Labour Code grants employers the right to dismiss employees who willfully disobey lawful and reasonable orders relating to their work performance.
The Department of Trade and Industry (DTI) and the DOLE interim guidelines on workplace prevention and control on covid-19 also mandate employees to comply with all workplace measures to prevent covid-19, although this seems to contemplate only frequent hand washing, wearing of masks, and physical distancing.
From a business perspective, establishments that can disclose that all their employees have been vaccinated will undoubtedly be advantageous in offering their products and services, not to mention being saved from the attendant expenses and difficulties arising from cases of employee illnesses.
At present, there is a valid reason to argue that an employer cannot require current employees to be vaccinated unless a law or government regulation is passed to do so. And especially considering Labour Advisory No. 03-21, an employer cannot penalise, much more dismiss, employees who opt not to receive the vaccine.
The law is clear that employees can only be dismissed if any of the just or authorised causes provided by the Labour Code are present. Arguably, even the just cause on “willful disobedience of the lawful orders of the employer” mentioned above may not be applicable in this case. An exception may be argued if the requirement for vaccination directly relates to the employee’s performance and functions place him at a possible risk of transmitting or contracting the disease.
Towards this end, the government should consider mandating the vaccination of certain individuals, such as medical frontliners and workers in at least the essential industries, considering the medical and economic emergency that we are now facing. Such a practice has been done in the past, when the DOLE issued Department Advisory No. 05-10 in 2010, which requires Hepatitis B vaccinations for occupations with a conceivable risk of workplace transmission, such as healthcare workers.
With the vaccines being rolled out and administered also comes the apparent need to balance the state’s mandate of promoting the right to public health and concomitantly protecting the national economy versus personal freedom.
Clarence Darrow C Valdecantos is a partner and head of the labour and employment department at ACCRALAW