19 March 2021
Two weeks ago, I wrote a two-part article entitled “Work versus Choice” in which I presented legal arguments in support of and against the employer’s adoption of a mandatory COVID-19 vaccination policy with respect to its employees. At that time, the Department of Labor and Employment (DOLE) had yet to issue any advisory addressing whether the employer may compel employees to receive COVID-19 vaccinations.
By way of update to our readers, on 12 March 2021, DOLE issued the Guidelines on the Administration of COVID-19 Vaccines in the Workplaces (Labor Advisory No. 03, Series of 2021) to provide general guidance to employers in the private sector regarding administration of COVID-19 vaccines in the workplace.
It is important to note that DOLE has now clarified that no vaccine, no work policy shall not be allowed. While employers are mandated to encourage their employees to get vaccinated, they are not permitted to require them to receive COVID-19 vaccine as condition for continued employment. Accordingly, refusal to receive a vaccine cannot be considered as a just cause for termination of employment.
In addition, employees who shall fail or refuse to get vaccinated cannot be discriminated against in terms of tenure, promotion, training, pay, and other benefits. For instance, a pregnant employee who avoids the vaccination cannot be treated less favorably by the employer for purposes of promotion. This being said, there appears to be no prohibition with regard to incentivizing employees to get vaccinated.
With regard to the expenses to be incurred in relation to the implementation of a workplace vaccination program, the same shall be shouldered by the employer. No cost of vaccination in the workplace shall be charged against or passed on directly or indirectly to the employees.
DOLE also requires employers to adopt and implement the appropriate vaccination policy in the workplace as part of their occupational safety and health program. This policy shall be consistent with the guidelines issued by the Department of Health and Inter-Agency Task Force in accordance with existing laws, rules and regulations.
While the labor advisory does not detail the specific components and implementation strategies for the vaccination policy, it is suggested that the same should contain, among others, an undertaking to provide basic information on COVID-19 vaccination. Such information may include the organization’s stance on vaccination, type/s of vaccine to be administered, procedure for administration, time frame, possible side effects, if any, as well as monitoring and evaluation framework, and reporting mechanism to appropriate government agencies.
According to DOLE, employers may procure COVID-19 vaccines, supplies and other services.
Employers may also seek the support of the appropriate government agencies in the procurement, storage, transport, deployment, and administration of COVID-19 vaccines. In this regard, the policy should also be able inform employees if vaccines will be administered in the workplace or in some other locations and how the arrangements will be made.
Further, to incentivize employees, the policy may include provisions indicating that the time spent by the employees in getting the vaccine shall be compensable and that employees who may suffer side effects from the vaccine will be given paid leaves during their period of recovery.
It is also important to reflect in the policy the rule against discrimination to help address potential conflicts that may arise due to differences in opinion between pro-vaccine personnel and those refusing to have the vaccine.
Additionally, the employer should consider that medical information relating to an employee’s vaccination will constitute sensitive personal information. As such, access to said data or any information shall be bound by the rules of confidentiality and/or the Data Privacy Act of 2012.
The DOLE Regional Office concerned shall enforce the guidelines and provide appropriate assistance to employers to facilitate their compliance.
First published on The Daily Tribune.
For further information, please contact:
Nilo T. Divina, Managing Partner, DivinaLaw
nilo.divina@divinalaw.com
