The end of the COVID-19 global pandemic is beginning a transformative era for the global workforce. For years, the pandemic reshaped the way we work, accelerating trends in remote and flexible work arrangements, and emphasizing the importance of employee well-being. As vaccination campaigns have proven to be successful in curbing the virus’ spread, the workforce is now going through a crucial transition, especially during this time where we can finally say that COVID-19 is in our rear view.
The question should then be asked as to whether or not employers can retain the flexible and alternative work arrangements that have been shown to effectively cause employers and employees to re-evaluate their approaches to work, reinvent their office cultures, and harness the lessons learned during the pandemic in creating a more dynamic work environment.
On July 21, the President of the Philippines issued Presidential Proclamation No. 297 effectively lifting the State of Public Health Emergency throughout the country brought about by the pandemic.
Subsequently, on September 20, the Department of Labor and Employment (DOLE) issued Labor Advisory No. 23, Series of 2023 (LA 23-23) also known as the Guidelines on Minimum Public Health Standards in Workplaces Relative to the Lifting of the State of Public Health Emergency.
LA 23-23 covers all those in the private sector and emphasizes the shared responsibility of both employers and employees in ensuring safe and healthy working conditions. The Advisory further mandates the Safety and Health Committee to review, evaluate, and update their occupational safety and health programs.
Moreover, while the Advisory specifically prohibits any form of discrimination in terms of tenure, promotion, training, pay, and other benefits, towards employees who refuse or fail to get vaccinated, employers are nonetheless obligated to promote vaccination among its employees as well as the employees of their contractors, and their families. It also provides for the availability of workplace sanitation and hygiene facilities for employees.
Significantly, the Advisory expressly revoked issued labor advisories that were effective during the State of Public Health Emergency, which include, Labor Advisory 9, Series of 2020 (LA 9-20), and Labor Advisory 17, Series of 2020 (LA 17-20).
These advisories pertained to the guidelines on the implementation of flexible work arrangements and employment preservation upon the resumption of business operations. This made it possible for employers to formulate alternative schedules other than the traditional or standard work hours, days, and weeks, provided in the Labor Code of the Philippines, as amended.
Notably, during the pandemic, the said advisories were used by various employers as the basis for adopting flexible or alternative work arrangements as they relaxed and/or suspended, certain requirements (i.e., consent of the affected employees), due to the urgency of the situation.
Specifically, as an alternative to the termination of employment of its employees or closure of its business during the pandemic, LA 17-20 allowed employers to enter into schemes such as: (a) transfer of employees to another branch; (b) assigning employees to other functions and/or positions; (c) reducing work hours and days; (d) weekly job rotations; (e) partial closure of establishments; (f) other feasible work arrangements depending on the specific peculiarities of business requirements.
However, the said arrangements were mandated to be temporary in nature, and to be adopted only during the existence of a Public Health Crisis.
Thus, in light of the lifting of the State of Public Health Emergency and the subsequent issuance of LA 23-23, has the authority of employers to enter into flexible and/or alternative work arrangements with their employees been revoked? Otherwise stated, would it still be possible for employers to enter into similar arrangements?
Fortunately, while LA 9-20 and LA 17-20 have been expressly withdrawn, moving forward, employers may still be guided by the permissible arrangements under Labor Advisory No. 2, Series of 2009 (LA 2-09) and Labor Advisory No. 4, Series of 2010 (LA 4-10).
The said labor advisories allow the following flexible work arrangements: (a) compressed workweek schemes; (b) reduction of workdays; (c) rotation of workers; (d) forced leaves; (e) broken-time schedule; (f) flexi-holidays schedule; (g) gliding or flexi-time schedule; (h) other arrangements voluntarily agreed upon by the parties.
It is important to note, however, that since the Public Health Crisis no longer exists, strict compliance is now expected from employers who intend to adopt these arrangements. As such, it is now imperative for employers to get the consent of the affected employees, ensure that the arrangement will not result in a diminution of their existing benefits, and notify the DOLE prior to the implementation of the same.
This article is for general information and educational purposes only and not offered as legal advice or opinion.
For further information, please contact:
Nicanor P. Geraldez, ACCRALAW
npgeraldez@accralaw.com
