- Employers must put in place safety measures and protocols
- Employees may be required to fully disclose health-related information
- Employees obliged to follow health protocols
Two months into the community quarantines imposed at varying levels in the entire country, restrictions began to ease and more businesses were allowed to slowly resume operations.
Large number of employees have returned to work after weeks of staying in their homes.
This development compelled private businesses to adopt precautionary measures and undertake mandatory reportorial requirements for the protection of the workplace and their employees.
Bottomline: it is not quite business as usual.
With the lingering threat of COVID-19, the Department of Trade and Industry (“DTI”) and the Department of Labor and Employment (“DOLE”) issued on 30 April 2020 the Interim Guidelines on Workplace Prevention and Control of COVID-19 (“DTI-DOLE Interim Guidelines”).
This followed the earlier issuance on 08 March 2020 by President Rodrigo Duterte of Proclamation No. 922 declaring a State of Public Health Emergency throughout the country due to COVID-19.
The DTI-DOLE Interim Guidelines mandate employers to “provide the DOLE through its Regional Office, copy furnished DOH, monthly reporting of illness, diseases, and injuries utilizing the DOLE Work Accident/Illness Report Form.”
The DTI-DOLE Interim Guidelines also require that a daily health symptoms questionnaire be submitted by all employers and workers prior to entrance in buildings to the designated safety officers of the workplace, providing minimum protection in the workplace.
The same DTI-DOLE Interim Guidelines provide a Sample Protocol for Screening Employees and Visitors, which they may adopt in full or in part while giving employers the liberty “to develop their own screening protocols compliant to the latest local or international occupational safety and health hazards.”
The Department of Health (“DOH”) had also issued Department Memorandum No. 2020-0220 on Interim Guidelines on the Return-to-Work (“DOH RTW Guidelines”), which among others, mandate the screening of returning employees and workers.
According to these DOH RTW Guidelines:
- Returning employees and workers physically reporting to their place of employment shall be screened for symptoms of COVID-19, including fever, cough, colds and other respiratory symptoms, and/or relevant history of travel or exposure within the last 14 days.
- Returning employees and workers who are symptomatic with relevant history of travel/exposure on the date of work resumption shall not be allowed to physically return to work and must consult with their primary care provider. The use of telemedicine is encouraged for proper care and coordination.
- Returning employees and workers who were symptomatic with relevant history of travel/exposure within the last fourteen (14) days prior to the date of work resumption shall present the Certificate of Quarantine Completion duly issued by the step-down care facility or local health office, whichever is applicable based on the latest DOH guidelines on reintegration of suspect, probable, and confirmed COVID-19 cases.
- If asymptomatic within the last fourteen (14) days prior to the date of work resumption, employees and workers can be cleared to physically return to work.
The DOH RTW Guidelines also provide rules for the testing of asymptomatic returning employees, and the implementation of other prevention and control measures, among others.
There are certain prerogatives that management is allowed to exercise under the present set of circumstances. These are consistent with regulations and protocols put in place by government.
The management prerogatives are:
- Employees may be required to disclose information with regard to their travel history, possible exposures, and pre-existing health conditions prior to re-entry in the workplace, through daily questionnaires, checklists, and other similar methods of screening.
- Employees must truthfully disclose the required information since they have the potential to place their co-workers in danger of contracting the disease.
If it is proven that an employee deliberately misrepresented or failed to fully disclose such information, the employer under DOLE Department Order No. 147-15 is allowed to impose disciplinary sanctions on the employee including the termination of employment on the ground of Serious Misconduct or Wilful Disobedience. There must, of course, be full compliance with due process.
May an employee be terminated from work by wilfully disobeying clearly established safety measures and protocols?
SAID THE LAW:
The Labor Code allows the dismissal of an employee who performs an act which is serious, is related to his duties and with intent, resulting to him becoming unfit to continue working for the employer.
For wilful disobedience or insubordination, the same Code also allows an employer to terminate an employee who, given a reasonable and lawful company rule, regulation or policy, made known to the employee and related to his duties, wilfully and intentionally disobeys such rule or order.
It must be emphasized that even if the employer does not require the disclosure of such information, the employee is still obliged to follow the protocols put in place by the issuances above-mentioned. As such, if the employee knows that he or she has possible exposure to COVID-19, the employee must comply with quarantine requirements before re-entering the workplace.
In addition, Republic Act No. 11332 provides that during epidemics, it is prohibited for persons who should report and/or respond to notifiable diseases or health events of public concern, or persons identified as having the notifiable disease, to refuse to cooperate with the proper authorities who are tasked to implement laws to curb the spread of the disease. The penalties for such violations include the imposition of a fine, imprisonment or both.
Under current circumstances, our laws aim to strike a balance between the rights of employers and employees, as well as the safety of the workplace.
Allowing businesses to resume operations is not a license to disregard existing safety measures. At this point, it is important for the employers and employees alike to know their respective rights and obligations during this pandemic, considering that this will be the “new normal” and it will take some time before there could be a return to “business as usual”.
Glaiza G. Sarmiento Partner [email protected] (+632) 8687-1595 loc. 103