1 March 2021
It has been said that “he is no lawyer who cannot take two sides” (Charles Lamb). Our last article on whether an employer can require COVID-19 vaccination vis-à-vis possible constitutional and labor law objections garnered much attention and we received welcome requests to present legal arguments, this time, from the perspective of the employers, and the legality of such action.
In the spirit of discussion and for the better understanding of our readers, there are legal bases that can be cited for requiring COVID-19 vaccination in the workplace, especially company-provided ones. There can be room to argue that requiring COVID-19 vaccination is a reasonable and necessary health standard in the workplace.
First, Book IV of the Labor Code provides that the employer is responsible for occupational safety and health standards to eliminate or reduce occupational safety and health hazards in all workplaces. It must institute new and update existing programs to ensure safe and healthful working conditions in all places of employment.
Given this, a position can be taken that requiring COVID-19 vaccination is not simply allowed, but is a duty that must be taken seriously by the employers. Requiring COVID-19 vaccination is precisely in compliance with the employer’s foregoing health and safety duties. No less than the World Health Organization (WHO) has stated that “vaccines are a critical new tool in the battle against COVID-19,” and the developing tests, treatments and vaccines will collectively save lives and end this pandemic.
Second, Republic Act No. 11058, or An Act Strengthening Compliance with Occupational Safety and Health Standards and Providing Penalties for Violations thereof, provides it as a state policy to protect every worker against injury, sickness or death through safe and healthful working conditions. To this end, employers are required to furnish a workplace that is free from hazardous conditions that are causing or likely to cause death, illness or physical harm to employees.
What better way is there to ensure that the workplace is a safe and healthy working place than by all the employees being vaccinated and therefore protected to a certain extent against COVID-19, coupled with compliance with health protocols? The COVID-19 pandemic, unabated, is causing or likely to cause death, illness or physical harm to employees not just in the workplace but everywhere. If employers can impose a measure to reduce such cause of death, illness or physical harm in the workplace, should it not be allowed to do so?
Third, the Department of Trade and Industry (DTI) and Department of Labor and Employment (DOLE) Interim Guidelines on Workplace Prevention and Control of COVID-19 (“Guidelines”) provide stringent measures on “reducing transmission of COVD-19” and to “provide the necessary company policies for the prevention and control of COVID-19 in consultation with workers.” These policies must be aligned with policies and directives of the Department of Health (DOH) and WHO. Both have encouraged the use of vaccines to help reduce the transmission of the COVID-19 virus.
Employers are mandated to “provide resources and materials needed to keep the workers healthy and workplace safe” and “increase physical and mental resilience”, like encouraging the provision of free medicines and vitamins. COVID-19 vaccines may be broadly considered “free medicines” if shouldered by the employer and in fact specifically procured with the health and safety of their staff in mind.
Given the myriad of responsibilities given to employers, it can be gleaned from these labor laws and regulations that the employer may require COVID-19 vaccination in keeping with their responsibility to provide a healthy and safe workplace especially amidst the pandemic.
Lastly, employees are mandated by the same Guidelines to comply with all workplace measures in place for the prevention and control of COVID-19. The rules can cover even the most seemingly minute behavior of the employee such as washing of hands, etiquette on coughing and sneezing, or rules in throwing out one’s sanitary garbage, because such actions have a direct effect on controlling the spread of COVID-19 in the workplace. One may surmise why vaccination, which health experts consider as a significant help in preventing COVID-19, cannot be included in the requirements.
It pays to ask these questions now and anticipate answers, concerns and even legal issues covering the two sides of the issue on mandatory vaccination in the workplace. Once the vaccines become available and proper governmental approvals are obtained, the time will come for us to act. The question is, how will we act on this all-important matter?
I propose, as with all things, to act with prudence and good faith – balancing rights with the interest of the common good – and guided, always, by the rule of law.
First published on The Daily Tribune.
For further information, please contact:
Nilo T. Divina, Managing Partner, DivinaLaw
nilo.divina@divinalaw.com
