SyCip Salazar Hernandez & Gatmaitan (SyCipLaw)’s Dante T. Pamintuan, the head of its Employment and Immigration Department, recently spoke with Conventus Law about recent legal developments in the Philippines on employment matters. Below is our Q&A with him.
1. What are the main employment regulations that readers should be aware of?
The main employment regulations in relation to the COVID-19 pandemic are as follows:
Labor Advisory No. 09-20 (Guidelines on the Implementation of Flexible Working Arrangements)
Employers are mandated to notify the Department of Labor and Employment (DOLE) of the adoption of any of the flexible work arrangements.
Labor Advisory No. 18-20 (Guidelines on the Cost of COVID-19 Prevention and Control Measures)
The employer shall shoulder the cost of COVID-19 prevention and control measures. No cost related or incidental to COVID-19 prevention and control measures shall be charged directly or indirectly to workers.
Department of Trade and Industry (DTI) and DOLE Interim Guidelines on Workplace Prevention and Control of COVID-19
Employers have the following duties: (1) formulate company policies for the prevention and control of COVID-19; (2) provide resources and materials to keep the workers healthy and the workplace safe; (3) designate a safety officer who will monitor COVID-19 prevention and control measures; (4) enhance health insurance provision for workers; (5) where feasible, provide shuttle services and/or decent accommodation on near-site location; (6) enjoin the hiring from the local community; and (7) put up a COVID-19 hotline and call center for employees.
DTI-DOLE Joint Memorandum Circular No. 20-04-A (Supplemental Guidelines on Workplace Prevention and Control of COVID-19)
Employers are required to implement all necessary workplace and health programs at no cost to the employees.
Employers are required to provide signages, physical barriers, and such other means to ensure compliance with protocols.
Employers shall, as much as practicable, minimize the duration of customer transactions to less than 15 minutes.
Employers shall ensure that the employees, regardless of work arrangements, have access to telemedicine services, through health maintenance organization (HMO), employer-initiated telemedicine services, or Barangay Health Center.
Employers shall ensure strict compliance with the protocols established by the DOH and LGUs for contract tracing of employees in close contact with a COVID-19 case.
Employers shall conduct contact tracing within their workplace to identify close contracts.
Employers shall ensure that close contacts of employees whose RT-PCR test confirmed positive undergo a 14-day quarantine period.
Employers shall make available work-from-home (WFH) arrangements for the close contacts when feasible.
Employers are encouraged to collaborate with the national and/or local government testing efforts like drive-thru or walk-thru testing facilities.
Employers shall inform the LGU/s having jurisdiction over the workplace and the respective residence/s of the symptomatic employees and close contacts before testing for monitoring purposes.
Employers shall establish Occupational Safety and Health Committees.
Employers are encouraged to develop their own company policies on the temporary closure of the workplace, disinfection, and more extensive contact tracing, in the event of case clustering to ensure continuity of operations.
Employers are highly encouraged to provide sick leave benefits, medical insurance coverage, including supplemental pay allowance for COVID 19 RT-PCR test-confirmed employees or close contacts made to undergo a 14-day quarantine.
Labor Advisory No. 20-02 (Clarification on Provision of Shuttle Services, Workers Allowed to Report to Work, the Requirement of Isolation Areas, and Disinfection Procedures under DTI-DOLE JMC 2020-04-A)
Large-sized private establishments with total assets above Php100,000,000.00 located inside special economic zones and other areas under the jurisdiction of Investment Promotion Agencies are required to provide shuttle services for their employees.
In case the private establishments are unable to financially sustain the provision of shuttle services, they may adopt alternative arrangements, such as cost-sharing, partial vouchers for use of Transport Network Vehicle Services, and other alternative arrangements to facilitate the transportation needs of their employees.
Employers may contract the services of Public Utility Vehicles (PUV) to subsidize public transport operations.
Labor Advisory 20-17 (Guidelines on Employment Preservation upon the Resumption of Business Operations)
Establishments are, when feasible, highly encouraged to adopt work-from-home or implement telecommuting arrangement. Employees on work-from-home or telecommuting arrangement shall be provided with adequate support to perform the assigned task or job.
Labor Advisory No. 21-01 (On the Continued Vigilance Against New COVID-19 Variants through Reinforcement of Existing Minimum Public Health and Safety Standards and Protocols)
Employers/contractors/subcontractors/ and business establishments are tasked to reinforce strict implementation of minimum public health and safety standards and protocols in the workplace.
Willful failure or refusal to comply with any of the pertinent minimum public health and safety standards and protocols shall be penalized.
Labor Advisory No. 21-03 (Guidelines on the Administration of COVID-19 Vaccines in the Workplaces)
Covered establishments and employers shall adopt and implement the appropriate vaccination policy in the workplace.
Covered establishments and 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.
No cost of vaccination in the workplace shall be charged against or passed on, directly or indirectly, to the employees.
Covered establishments and employers shall endeavor to encourage their employees to get vaccinated. However, 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.
Labor Advisory No. 21-08 (Promotion of COVID-19 Vaccination in the Private Sector)
Employers shall continue to urge their employees to avail of the employer’s vaccination program, if any, or their respective local government units.
Employers shall seek appropriate assistance from concerned government agencies in the administration of COVID-19 vaccines.
Labor Advisory No. 21-09 (Work Accident and Illness Report [WAIR] COVID Form)
Beginning April 30, 2021, establishments are strongly advised/encouraged to submit online the monthly Workplace COVID-19 Prevention and Control Compliance Report (WAIR COVID19 Form) through the DOLE Establishment Report System.
Employer must submit the WAIR COVID-19 form every 30th of the month with or without any COVID-19 case in their workplace.
DOLE Department Order 21-224 (Guidelines on Ventilation for Workplaces and Public Transport to Prevent and Control the Spread of COVID-19)
2. Has the COVID pandemic been a game-changer for employment in the Philippines? How so?
Yes, the COVID pandemic has been a game-changer for employment in the Philippines. Several industries were hit hard by the numerous lockdowns. The employers had to implement several health and safety protocols for employees who work on-site. Employers also shoulder all the costs related to these protocols, including the vaccination of their employees should the employers choose to implement a vaccination program, which are all added expense on the part of the employers. Furthermore, employers were forced to adopt flexible working arrangements. The pandemic has boosted online transactions and logistics services, but forced other establishments that were not fast enough to adapt to those types of business models to substantially reduce their production or services or to close permanently.
3. Are there legal requirements with regard to an employer COVID-19 Vaccination Policies?
Labor Advisory No. 21-03 provides the Guidelines on the Administration of COVID-19 Vaccines in the Workplace. Employers may procure COVID-19 vaccines in partnership with the government, but only vaccination centers identified and accredited by the government are authorized to administer COVID-19 vaccines. Furthermore, the cost of vaccination of the employees for privately procured vaccines shall be shouldered by the employer. Employers are encouraged to urge their employees to get vaccinated. However, 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. Lastly, employers are prohibited from adopting a “No vaccine, no work” policy.
Other than the foregoing, there are no specific guidelines issued to regulate an employer’s COVID-19 Vaccination Policies.
4. Can an employer withhold pay if an employee refuses to get vaccinated?
No, an employer cannot withhold pay if an employee refuses to get vaccinated because this may be construed as discriminatory. Withholding of pay on the ground of the employee’s refusal to get vaccinated is contrary to Department of Labor and Employment (DOLE) Labor Advisory No. 3, series of 2021, which prohibits an employer from discriminating against any employee who refuses or fails to be vaccinated. The Labor Advisory provides that “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.
5. What measures have been put into place to regulate the switch to WFH/online working during the pandemic?
DOLE Labor Advisory No. 9, series of 2020 provides for the Guidelines on the Implementation of Flexible Work Arrangements as Remedial Measure due to the Ongoing Outbreak of Coronavirus Disease 2019 (COVID-19). The employer and the employees who adopted the flexible work arrangements are primarily responsible for their administration. Employers are mandated to notify the DOLE through the Regional/Provincial/Field Office which has jurisdiction over the workplace of the adoption of any of the flexible work arrangements.
6. Have there been recent changes to managing employment contracts with regard to the effects of COVID-19?
Labor authorities highly encourage employers to adopt work-from-home arrangements when feasible. As an alternative to termination of employment or closure of business, any or a combination of the following arrangements may be adopted:
- Transfer of employees to another branch or outlet of the same employer;
- Assignment of employees to other function or position in the same or other branch or outlet of the same employer;
- Reduction of normal workdays per day or week;
- Job rotation alternately providing workers with work within the workweek or within the month;
- Partial closure of establishment where some units or departments of the establishments are continued while other units or departments are closed; and
- Other feasible work arrangements considering specific peculiarities of different business requirements.
However, the implementation of any of the flexible work arrangements should be temporary in nature and shall be adopted only for as long as the public health crisis exists.
Employers and employees are allowed to voluntarily and temporarily adjust employees’ wage and wage-related benefits as provided for in existing employment contract, company policy, or collective bargaining agreement (CBA). Any agreement on wage adjustment must be in writing and must be reported to the DOLE. However, the adjustments in wage and/or wage related benefits shall not exceed six (6) months or the period agreed upon in the CBA, if any. After such period, employers and employees shall review their agreement and may renew the same.
7. The Philippines House of Representatives approved a series of Bills earlier this year related to the pandemic. What important repercussions have these had on employers?
Below is a list of House Bills approved in 2021:
Among these bills approved by the House of Representatives in 2021, only HB 07620 contains provisions relating to employers. HB 07620 or the SHIELD Act classifies all workplaces as high risk areas of infection during the pandemic. Consequently, employers are mandated to hire professional health workers and to establish isolation facilities, regardless of the number of their workforce.
It also provides for a paid quarantine leave to qualified employees consisting of 14 days of paid sick leave at the employee’s full daily rate, without prejudice to existing sick leaves. The employer shall pay the employee and the government will reimburse the employer.
These create added expense to the employers. Although the paid quarantine leave will be reimbursed by the government, the process of reimbursement is still to be determined. Depending on the vaccination rate of the government and the rate of transmission of the virus, payment of the quarantine leave may result in huge cost to the employers.
Other than the SHIELD Act, there are no other approved House bills in 2021 that have significant repercussions on employers. Most of the bills provide for the establishment of a government body or agency to address the pandemic and other public health emergency, the giving of cash assistance to certain Filipinos, and the establishment of a preparedness plan.
The relevant provisions of the SHIELD Act are as follows:
Section 7. Testing of workers returning to work. – All workplaces shall be categorized as high risk areas of infection during the pandemic. The COVID-19 is hereby categorized as an occupational disease. In line with this, employers are hereby mandated to ensure the hiring of professional health worker/s and the establishment of isolation facility/ies, regardless of the number of its workforce, in accordance with Section 15 of Republic Act No. 11058 or “The Strengthening Occupational Health Standards Act of 2017.” The creation of a COVID-19 crisis committee within the workplace is hereby encouraged.
Workers with symptoms assessed as suspected cases and workers with exposure to a confirmed or probable case, regardless of symptoms or lack thereof, shall be tested for COVID-19. Provided, that the principal employer shall bear the cost of testing and other related expenses of all personnel, regardless of employment status. Provided, further, for medium, small, and micro enterprises, the principal employer may apply for a subsidy program for testing his/her employees. Provided, finally, the Free Mass Testing Fund shall likewise bear the cost of testing and other related expenses of all government employees, regardless of employment status, together with those on recurring job orders and contracts of service.
Section 37. Paid Quarantine Leave. – Employers, national government agencies, and local government units (LGUs) are mandated to grant paid quarantine leaves to qualified employees to contribute to the overall program and to mitigate and prevent the spread of COVID-19 virus and to ensure occupational safety and health in the workplace.
For an employee to qualify for paid quarantine leave, he or she:
a. is classified as a low- to middle-income earner;
b. has tested positive for COVID-19;
c. is awaiting test results for COVID-19;
d. is experiencing COVID-19 symptoms and is seeking medical diagnosis; or
e. has been exposed to a confirmed COVID-19 case.
The paid quarantine leave shall be fourteen (14) days of paid sick leave at the employee’s full daily rate, without prejudice to existing sick leaves. Provided, that 100% of the daily compensation shall be paid to the employee within the quarantine period. Provided, further, that the national government shall reimburse the employer for the payment of the employees’ paid quarantine leave, using available funds from the DOLE, Social Security System (SSS), and Government Service Insurance System (GSIS). Provided, finally, that the employee’s security of tenure is preserved during the availment of the paid quarantine leave.
In the case of private establishments, the SSS shall compensate the employer to the extent of salaries paid to the employee in excess of paid sick leaves as provided for under company policy, for the duration of the entire illness episode, including the quarantine period post hospital discharge.
In no case will employee compensation exceed 120,000 pesos per individual.
8. What new measures are employers to face in the near future?
Employers could face mandatory vaccination requirements imposed by the government in the near future. In the meantime, employers have to formulate vaccination policies which do not make vaccination mandatory but nonetheless, ensure the safety of the employees who are made to report to work on-site. Employers have to make sure that the company policies related to COVID-19 do not discriminate against those who do not want to get vaccinated. It is also possible that employers will be made to shoulder the cost of testing of employees assessed as suspected cases and workers with exposure to a confirmed or probable case.
Employers would also have to adjust the number of people they will require to work on-site at a given time or day even if majority of its employees are already vaccinated. While vaccination is ongoing, the effect of vaccination on the capacity of establishments is yet to be determined. Even if a majority of the employees are vaccinated, it is still possible for flexible working arrangements to be implemented since capacity of the establishment is a limiting factor.
9. “National Unemployment Insurance Program” Bill was passed but is yet to be adopted. What do employers need to do to prepare for this?
Employers have to be aware of provisions in the law that can affect them. Under the proposed bill, the employers are obliged to contribute to the Unemployment Insurance Fund (Section 9). The employee, employer, and the government will equally share the compulsory premium contributions the amount of which is dependent on the probability of job loss, salary level, program administration costs, and type of employment (Section 9).
The employer is also tasked to remit its contributions and that of its employees to the SSS (in the interim), and eventually to the Philippine Job Insurance Corporation (“Corporation”) (Section 10 and Section 8). Failure to remit the monthly contributions of the members exposes the employer to criminal liability (Section 29). Furthermore, officers and personnel of private companies involved in the collection of contributions who fail, refuse, or delay the payment, turnover, remittance, or delivery of accounts may be held criminally or civilly liable (Section 31).
NOTE: House Bill 07028 (An Act Instituting a National Unemployment Insurance Program for the Philippines and Appropriating Funds Therefor) is pending with the Committee on Labor and Employment since 2020-07-28.
The provisions of the bill relevant to the employer are as follows:
Section 9. Contributions. It shall be compulsory for the national government, members, and employers to contribute to the Fund in accordance with a reasonable, equitable and progressive contribution schedule, to be determined by the Program Manager on the basis of applicable actuarial studies and in accordance with the following guidelines.
The national government, employers, and employees shall equally share compulsory premium contributions.
The risk-rated premium computations shall take into account factors such as: (i) the probability of job loss, (ii) salary level, (iii) the program administration costs, and (iv) type of employment.
Section 10. Duty to Contribute and Remit to the Unemployment Insurance Fund. Premium contributions to the Fund shall be remitted by employers within ten (10) days from the end of each month. The member’s employer shall contribute one-third (1/3) of each premium contribution at no cost to the member, and shall withhold one-third of the premium contribution from the member’s monthly compensation. The employer’s obligation to remit to the Fund shall begin on the member’s first month of employment. The government’s share of total contributions shall likewise be released to the Fund within ten (10) days from the end of each month.
The employer shall include in its annual appropriation the necessary amounts for its share of contributions.
Section 29. Any employer who after deducting the monthly contribution of members, fails to remit the same to the Corporation within the period prescribed in this Act shall be presumed to have taken the same [and] shall suffer the penalties provided in Article 315 of the Revised Penal Code.
Section 31. The officers and the personnel of private companies who are involved in the collection [of] contributions who shall fail, refuse or delay the payment, turnover, remittance or delivery of such accounts, upon conviction by final judgment, suffer the penalties of imprisonment of not less than one (1) year nor more than five (5) years and a fine of not less than (P50,000) nor more than two hundred thousand pesos (P200,000) and shall also be civilly liable to the member concerned in the form of damages provided for in the Civil Code of the Philippines.
For further information, please contact:
Dante T. Pamintuan, Partner and Head, Employment and Immigration, SyCip Salazar Hernandez & Gatmaitan
Tel: +632 8 982 3500
dtpamintuan@syciplaw.com
Mr. Pamintuan specializes in labor and employment, litigation, and corporate services.
His primary area of practice is in employment law, with more than three decades of extensive experience in providing employers with practical and ethical approaches and solution to all aspects of employment. He advises clients and provides them with proactive approaches to all manner of employment issues that could attract litigation or collective action by individual employees or groups
SyCip Salazar Hernandez & Gatmaitan (SyCipLaw) was founded in 1945 and is one of the largest law firms in the Philippines. SyCipLaw has been ranked by the Chambers Asia-Pacific and the Asia Pacific Legal 500 as a Band 1 firm in the Philippines for employment and immigration.
The responses in this Q&A article were provided by SyCip Salazar Hernandez & Gatmaitan (SyCipLaw) to give information about recent legal developments in the Philippines. The responses are summaries of the legal issuances and are circulated for information purposes only.
The responses do not constitute legal advice of SyCipLaw or establish any attorney-client relationship between SyCipLaw and the reader. Online readers should not act upon the information in this article without seeking professional counsel. For more specific, comprehensive and up-to-date information, or for help regarding particular factual situations, please seek the opinion of legal counsel licensed in your jurisdiction.
Please check the official version of the issuances discussed in this article. There may be other relevant legal issuances not mentioned in this article, or there may be amendments or supplements to the legal issuances discussed here which are published after the publication of the article.
