Rules on Employee Relations During COVID-19 Pandemic

For many people, the COVID-19 Emergency Community Quarantine (ECQ) has seen a mass “stay-at-home” culture come into play, with people not able to travel to work due to curfews and the national “lockdown”.

For most employees stuck at home, this means the no work, no pay policy comes into play, and they have to stay at home without salary until the pandemic is over and the lockdown is lifted to the new General Community Quarantine (GCQ) guidelines on May 15.

PRRD

But for a few, this has meant a complete separation from their employment, with no job to look forward to when the lockdown is over. And many of these terminated employees will have been terminated illegally, for such alleged infractions as absenteeism.

And there are plenty of other issues concerning employees that this pandemic and lockdown has brought to the surface.

termination

Illegal Termination during ECQ

The government said private businesses cannot fire their workers who are not coming to work because of the enhanced community quarantine imposed on mainland Luzon due to the coronavirus disease (COVID-19) pandemic. A bulletin was issued by Malacañang on Wednesday March 18 stating businesses that were not engaged in the production or sale of basic necessities must not require their employees to come to work. In fact, Labor Secretary, Silvestre Bello III, said that workers cannot be punished because of their failure to attend work amidst the COVID-19 outbreak.

However, there are now thousands of employees across Luzon that will no longer have a job to go back to once the lockdown is lifted. This is because their employers did not follow the guidelines on terminations for absenteeism during the COVID-19 ECQ. Under the DOLE guidelines for the ECQ, absenteeism must be excused, as they cannot report for work and there is no basis for disciplinary actions.

If you, or anyone you know, has been the victim of this illegal and highly immoral action, send us a message here for completely free advice on how to fight your illegal termination.

flexible

Flexible Work Arrangements (FWAs)

Measures were put in place to allow businesses to continue to operate at reduced capacity during the ECQ under the Labor Advisory No. 09 Series of 2020 (the “COVID-19 Flexi-Work Advisory”), issued by the DOLE on 4 March 2020. Employers were encouraged to adopt FWAs to prevent the spread of COVID-19, including reduction of workhours and/or workdays, rotation of employees and other alternative work arrangements in order to cushion or mitigate the effect of the loss of income of the employee.

Employers were obliged to notify their local DOLE office using the Establishment Report on COVID-19 to provide details of the FWAs for their employees. Employees under the FWAs of their employers are not considered to have been demoted or reduced in status during the ECQ, and will return to their original positions and hours of operation when the GCQ period for their region is established.

Work from Home (WFH) arrangements with employers do not have specific DOLE regulations, but have been noted as one of the FWA options for employers during the ECQ. However, it must be noted that the WFH arrangements are not mandatory, and an employee cannot be terminated for declining the option to work from home instead of taking the “no work, no pay” option.

If you, or anyone you know, has been the victim of this illegal and highly immoral action, send us a message here for completely free advice on how to fight your illegal termination.

closed

Closure of Business and Retrenchment/Redundancy

A number of businesses in Luzon have been known to have closed down completely due to the COVID-19 pandemic, after being left with no business to apply, and rising costs. These permanent closures, whether or not caused directly or indirectly by the COVID-19 pandemic, are still governed by the Labor Code. For this reason, employees may be dismissed from their employment on account of the any of the following authorized causes for termination: (a) Business Closure, (b) Redundancy, or (c) Retrenchment, only upon compliance with the substantive and procedural requirements for an authorized cause dismissal. This includes the requirement to give notice of termination to both the employee and the appropriate DOLE Office within thirty (30) days from the date of termination of employment, and the payment of the appropriate separation pay to the employees.

boracay

Leave Benefits During ECQ

Leave benefits from employers allow employees to be absent from work with pay, and such leave benefits can be used to help with income over the ECQ period. However, ONLY THE EMPLOYEE can decide whether or not to use their leave benefits in order to continue receiving pay from their employer during the ECQ. Employers are not permitted to interfere with the exercise of the employee’s right to paid leave. So you can take your holiday entitlement if you wish, though you may not get to see the white sands of Boracay.

Only those establishments that continue to operate may require their employees to go on “forced leave”. This is authorized under the COVID-19 Flexi-Work Advisory, as a management prerogative or if employees are sick, to mitigate the effects of the pandemic to protect the workplace from the threat of COVID-19.

probation

Probationary Period Extensions

Labor Advisory No. 14, Series of 2020, entitled “Clarification on the Non-Inclusion of the One-Month Enhanced Community Quarantine Period on the Six-Month Probationary Period”, has set out the guidelines all employers must use for the recalculation of the employee’s probationary period.

The standard period for a probationary employee is 6 months, which is worked out under the Labor Code’s Implementing Rules and Regulations and promulgated by Supreme Court jurisprudence to mean 180 days. After 180 days, any employee that has not been dismissed or regularized, automatically becomes a regular employee.

Under LA 14-20, the entire period of the ECQ should be excluded from the count of the 180 days of the probationary period for all employees in the private sector. This means that your probationary period stopped on March 16, 2020, and will restart from that point on the date that you return to work.

As long as the ECQ is reduced to the GCQ on May 16, 2020, the period of your probation will be extended by a total of 61 days. For example, if the original date of your last day of probation was March 30, 2020, your new date will be on May 30, exactly 61 days after your last day of work. On May 31, you will become a regular employee.

For those that will not move to the GCQ on May 15, the same rule applies, except with a longer period to be added to your probation once you return to work.

If your employer gets the dates wrong, and terminates your employment under probationary reasons after your 180th day, contact us here for free legal advice.

48 thoughts on “Rules on Employee Relations During COVID-19 Pandemic

  1. April Mae

    We have an employee who’s on probation for 3 months. However, she tested positive for COVID-19 infection and was quarantined for almost 1 month. Since the evaluation should be made 1 month prior to end of probation, I wanted to ask if it is legal to extend her probationary employment to additional 1 month to compensate for the 1 month quarantine?

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    1. The only grounds under which you can extend a probation period are:
      1. At the request of the worker to allow more time to be evaluated and meet the requirements for Regularization, pending management approval; or
      2. Where the worker was on Forced Leave during the Community Quarantine due to lack of work, closure of business, or temporary cessation of operations of all or part of the business.

      Unfortunately, these do not apply in this case.

      The initial Non-Inclusion of the ECQ in Probationary periods was for One Month from March 16, and was given under Labor Advisory No. 14 Series of 2020.

      Then we had Labor Advisory No. 14-A Series of 2020, which stated that, if a worker on probation is not required to attend work due to closure, cessation of business, or temporary suspension of business operations, then that period during which they are not required to attend can be excluded from their probationary period.

      Does that include being off work for having COVID? No. This is a period of illness, not a temporary cessation of work or forced leave under the guidelines of Labor Advisory No. 17 Series of 2020. This is the same as having a month off because of dengue or a week off with flu. Illnesses are not valid grounds for an extension of the probation period.

      That said, if the worker is happy to allow an extension of an additional month to cover the month they were off, and EXPLICITLY REQUESTS IT IN WRITING, then there is no reason why you cannot agree to it. In writing, of course. But the request HAS TO come from the worker, in writing, and not in any way requested by the employer.

      I hope this helps.

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      1. April Mae

        Sir, thank you for the response. This greatly enlightened me on the matter. We actually issued a request to the employee for the extension and she gladly accepted because she said that she believes her period of probation is not enough. I think we’ll make the necessary adjustments to consider your advice. Thank you very much and more power!

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      2. I would suggest in the future that you utilize the maximum period of six months for probation, as it has been shown repeatedly that proper evaluation of a worker’s ability and suitability for a position cannot effectively be assessed in a mere three months, especially where part of that time is spent in training for the job they will be doing. That would not only save you having to work out how to extend in these circumstances, but also allows you to regularize a worker at ANY time during that period, if you feel they are worth it. You don’t HAVE to wait until the six months are up.

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    1. Lito Aranaydo Morata

      Hello, I was put on temporary lay off because I agreed to move to a new line of business. The business did not close the operations. I was being offered a lateral transfer to a new line of business thus I was put on temporary lay off awaiting for the new line of business to take off. It has been over 2 weeks and I haven’t heard anything. My question i, Is it legal to put me on temporary lay off with a tentative schedule as to when the new line of business starts? I did not incur any violations resulting to temporary lay off. I was forced on temporary lay off status.

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      1. You were offered and accepted a lateral transfer, but the transfer would not be done immediately, meaning you had no shift to attend. You were also given a tentative schedule as to when the new LOB would begin operations, and obviously accepted that schedule.

        In effect, you have no shifts because the LOB has not begun yet, so you are merely on unpaid leave until the new LOB opens, and you are merely waiting for a work schedule and are not laid off, temporary or otherwise, for the intervening period.

        Is that legal? Yes, it is legal because you were offered and ACCEPTED the transfer, and accepted the lack of schedule. If you had not accepted, you would still have been working in your old LOB.

        You are probably not on Temporary Lay-Off, unless the company sent you a legal notice of Temporary Retrenchment 30 days in advance of the date you stopped working for your old LOB. Most likely, you have been given a temporary Leave of Absence while the new LOB is waiting to begin operating.

        If you were on TLO or Temporary Retrenchment, your employer would have been required to provide the DOLE with an Establishment Report for your Forced Leave, and since that can only be done under the requirements of Labor Advisory No. 17 Series of 2020, which cites actual or potential business closure or losses, it is unlikely that one would have been submitted to the DOLE.

        You can check however, with your local DOLE office whether an Establishment Report was submitted for you at the time. If it was, then the suspension/TLO would be illegal IF you were not given 30 days notice. Instant effectiveness of TLO only works for grounds of business losses or closures.

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    2. No, there is no mandate to pay a worker who has contracted COVID-19 in the workplace. And if the employer is up to date with your Philhealth and SSS contributions, your medical expenses are covered by Philhealth. Only if the contributions are not up to date is the employer liable for your medical expenses.

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  2. bhadz

    Good Day!

    Our Company (Transport) is cutting expenses and by doing so they want us to discontinue going to work ( no specific time when can we resume), but they are not filing any Temporary Closure of whatever. Can we claim unemployment benefits to SSS or in our company?

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    1. If the company is not permitting you to go to work, which is known as floating or forced leave, then you are not entitled to unemployment benefits, as you are still considered to be employees of the company. However, the company IS obliged to complete the Establishment Report Form (RKS Form-5) and submit it to the local office of the DOLE including grounds for placing employees on floating status or forced leave, as well as listing the names of the employees they placed on forced leave. They do not have to file any temporary closure, just provide grounds and proof of their reasons for floating. If they cannot or do not provide the Report to DOLE, your forced leave then becomes Illegal Suspension, and you can file a claim for Constructive Dismissal with the NLRC.

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  3. Juan (Not real name)

    Hi I was under probationary on February 2020 then I was put under forced leave since March 2020. The company decided to terminate me due to redundancy on December 6 2020. Am I entitled to a separation pay?

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    1. Hi Juan,

      If your company’s reason for termination was “Redundancy”, under Article 298 of the Labor Code, for the correct reasons, then yes, you are entitled to Separation Pay. While you would still be considered as under the original Probation Contract, due to the forced leave status since March, if the grounds on your notice of termination, which must be issued at least 30 days before the expected date of termination, are listed as Redundancy or Retrenchment, then you are eligible for Separation Pay at the rate of One Month’s Salary.

      If they decide to terminate you under Probation, then you are not eligible for Separation Pay.

      Like

  4. Mikaela

    Is my employer obliged to continue paying for my SSS, Pag-ibig, & PhilHealth contributions even if I was on No-Work-No-Pay since ECQ started on March 17, 2020?

    I am a regular employee working in Metro Manila and until now I am still not advised to get back to work.

    My concern is more on PhilHealth because our company doesn’t provide HMO coverage for the employees so if ever employees get sick and PhilHealth is not paid, then we, the employees, have to shoulder all the medical costs. If I voluntarily pay for my PhilHealth (SSS, Pag-ibig) contributions, is my company obliged to refund me for it? I hope you can shed light on this. Thank you.

    Like

    1. Hi Mikaela,

      When it comes to he contributions paid by your employer, these are always based on your income. And if you do not have an income, then your employer is not obliged to make any contribution payments.

      However, this does not mean you are not covered under Philhealth if anything ever happens. As long as your contributions are up to date (assuming they were prior to March 17), then you will still get all the benefits you would expect to get if you were actually in work, as you are still an employee.

      My main concern here is the Illegal Constructive Dismissal that you have just suffered. If you were on No Work No Pay since March 17 (TLO or Floating), then your maximum period of six months floating has already ended, and your employer MUST either take you back and reinstate you or provide you with retrenchment and Separation Pay.

      If he does neither, and it appears from your comment that he has not, more than a month past the last day of any floating period given under Article 301 of the Labor Code, then you would be considered by law as Illegall Constructively Dismissed without Due Process.

      You need to talk to a lawyer about this issue. We have free lawyers that can help you. You can contact them through our Facebook page at: https://www.facebook.com/ELPPhilippines/

      Like

  5. Jacob

    Good day, we are no longer with the company but we have a question if where category we’ll fall (Retrenchment or Redundancy) under these factors:

    – One client was lost under one unit/department but our unit/department is still operational up-to-date. (We were the ones affected.)

    – Only a fraction of the business unit disengaged, not the whole unit.

    – We were given the option to transfer to other department, but we declined as positions offered were far from our field and area of expertise. We also don’t have any job experience in the options given.

    – Company is actively hiring for their open job positions up-to-date.

    There’s a big difference in the computation between retrenchment and redundancy for our severance pay, which will be important. Thanks and keep safe.

    Like

    1. Under Article 298 of the Labor Code (renumbered), it clearly gives the grounds for reduction of personnel, to wit:

      “The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking”

      A redundancy will exist where the services of an employee are in excess of what is reasonably required by the enterprise i.e. a position is redundant where it is superfluous to the business. This may be for any number of reasons, for example, previous over-hiring or a decreased volume of business. It may also result from a restructuring, reorganization or outsourcing of work.

      Retrenchment, however, is the reduction of staff due to financial losses or reverses or to prevent losses or to prevent the complete closure of the business or the stopping of operations due to financial reasons. In retrenchment, there is always the financial aspect to take into account. And continuous hiring of employees for other parts of the company does not show financial strain or losses.

      Taking into consideration your explanation of events, and that the company is still actively hiring for other positions within their normal business operations, the closure of one department would be better placed under redundancy than retrenchment. As specialized workers in the field in which you operated within your department, it is clear that the closure of the client’s account meant there was now an excess of staff for that department. Offers of other work notwithstanding, and rightly refused as you were not qualified for such, this means that your positions within the company were superfluous to requirements.

      In order to file your retrenchment legally, the company MUST provide the required notice to you all at least 30 days in advance of the date of retrenchment or redundancy. And if they are claiming it is for retrenchment, then they must also file the relevant Establishment Employment Report (RKS Form 5) with the local office of the DOLE at least 30 days in advance as well.

      I would suggest that you contact the DOLE in your area and request a copy of the Establishment Employment Report, to show their mitigated losses that give them authorization for terminations of employment for Authorized Causes under Article 298.

      Like

  6. mrj

    Hello 🙂

    I was supposed to have been evaluated last August 12, my supposed 6th month of work in the company. Until now, I am still given work. However, when I asked my head for a follow-up on my work status last Monday, my head said regularization is delayed due to the COVID-19 pandemic.

    1. Since my head said that, is delaying of regularization due to COVID-19 legal?
    2. Since I am already past the 6-month probationary period, am I considered a regular employee? Or am I still under probationary period?

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    1. If your original date of Regularization was August 12, and you were permitted to continue working after that date, and you were not on floating status or TLO at any point during the quarantine, then you are already a regular employee by default. The Labor Code states that any employee permitted to work past their probationary period shall be considered as a regular employee.

      No, there is no delay on regularization due to COVID-19, unless you were off work on a No Work No Pay status at some time during the quarantine. This was given in Labor Advisory No. 14-A, Series of 2020, whereby the period of the community quarantine where an employee was not working shall be excluded for the purposes of the probationary period. Any days when you were off work on NWNP (excluding sick days, holiday days, and weekends) is added to the end of your original date of regularization.

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  7. Lloyd

    Hi M Charles,

    I would much appreciate your inputs.

    When shall the temporary lay-off or forced leave commence? Shall it be from the date of issuance of forced leave notice to employees or from the date of business shutdown? Our company issued an official notice of temporary lay-off early part of May but our fitness facility shut down on March 16.

    Also, if our company doesn’t wish to terminate our employees due to retrenchment with the hopes that the government will allow gyms to reopen soon before the bona fide suspension of operations exceeds 6 months, is a mutual agreement with an employee for an extension of temporary lay-off legally valid? If not, what are other options aside from lay-off?

    Thank you.

    Like

    1. Hi Lloyd,

      This has been a bone of contention of late, with companies trying to claim that the forced leave starts when they issue the notice. In reality, forced leave begins on the first day you are not required to enter work. The date of the notification is irrelevant in this matter.

      Forced leave for all affected businesses began on March 17, 2020. This was when the emergency shutdown of businesses became effective. If you were not required to come to work on this date, because your gym was closed as a business that was not permitted to open, then THAT is the first day of your period of forced leave.

      Your employer should have notified the DOLE of the forced leave of their employees on or around that date, as this was one of the requirements of the Bayanihan We Heal As One Act, and associated advisories that followed. Your company is wrong to issue a notice of TLO that late and expect it to be valid.

      In effect, your date for the end of the TLO, based on your first day of layoff being March 17, is September 12. If you have not been reinstated by that date, your company has no option but to retrench you with separation pay or reinstate you on paid leave.

      As for extending the period, that is not permitted under law. As per Article 301 of the Labor Code, all employees that are not returned to working status at the end of their 180-day TLO period must be retrenched and are entitled to Separation Pay. No period of TLO should exceed six months. The ONLY exception here is if the employer places you on paid leave until such time as they return to business.

      Like

  8. Lance Kaiser Altura

    Hi Sir,

    I was placed on floating status way back march and my contract for redeployment will expire on Sept 2 which is 180 days as per agreement…My employer is now offering me alternate positions for my Job as replacement, however starting today I will be on home quarantine for 14 days due to a contact with a possible covid positive individual…can my employer take it against me from receiving my separation pay since I will not be able to report back or comply with assessments/interviews for the new job post that they are offering?

    Like

    1. Hi Lance,

      No, they cannot use your forced home quarantine against you, especially in the receipt of separation pay. Since you are legally required to be on home quarantine under the DTI and DOLE Guidelines on Workplace Prevention and Control of COVID-19, your employer MUST follow the letter of the law in your forced leave. Since you will not be able to accept the position due to your quarantine, the employer only has two options.
      1. To allow you to be terminated for retrenchment following the completion of the six (6) months (180 days) of your forced leave, complete with full Separation Pay based on your company tenure; or
      2. Admit you as applied to the position on offer, and end your forced leave status with the company. This will not affect the fact that you have been forced into Home Quarantine, as this is different o forced leave for financial reasons of the company.

      Like

      1. Lance Kaiser

        Thank you for the input…Now the HR team is not replying to my email update for my separation…I’m on my Day 182 without work and pay..I asked if I can come to the office and process my clearance but they told me that I cannot process it without being separated from the system and just wait for them for an update..I believe they are going to stall this…is this legally allowed?

        Like

      2. Hello again.

        No, this is not permitted. The company is obliged under law to either reinstate you or retrench you. Since they have done neither before the end of the 180th day, then you have now been Illegally Dismissed.

        Your next step, since they do not want to discuss it, is to take it to the local office of the NLRC in the area in which your workplace is located and file a formal Complaint for Illegal Dismissal with Money Claim.

        The complaint is filed on the Single Entry Approach (SEnA) form, which you can get from the officer at the SEnA Desk inside the offices. Once you have filled it out and submitted it, the desk officer will schedule an initial mediation meeting, and send a subpoena to the employer.

        This is an issue that you cannot lose, and if you need further help, we have a lawyer on hand on our Facebook page that can help. Please feel free to contact them there and let them know we have referred you from here. All legal advice given through the Employment Law Project – Philippines Facebook page is completely free.

        The page address is: https://www.facebook.com/ELPPhilippines/

        Like

    1. Hi Gigi,

      Yes. While the quarantine period may have had an effect on the ability of employees to resign, the ability of the employer to process an employee’s termination of employment for Just Causes was not affected. Violations of company policies or violations under the Labor Code are still valid reasons for dismissal for the entirety of the pandemic.

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      1. The Labor Code is the only reference that is required. When in emergency situations like this, unless there is a special law passed that temporarily overrides the standard laws, those standard laws still apply.

        There was no Labor Advisory, Department Order, or other issuance that removed the employer’s ability to terminate employees for Just or Authorized Causes during the Community Quarantine periods. Hence, companies were still permitted to remove and terminate employment for violations of Article 297 and company policies, and dismiss employees under Article 298 for retrenchment.

        Like

  9. Alyssa

    Dear Sir Charles,

    I have been working for this company for 5 months now and I am still under probationary period before the COVID-19 pandemic. Even though MGCQ has been implemented, our company has decided not to re-open yet to cut future loses and to resume operations only when things are stable and we were told that they may put us on temporary lay-off for now but with no exact date as to the resumption of operations.

    I would just like to ask if when will the continuation of our probationary period be? Would it be once we had gone back to work or now that the MGCQ has been lifted?

    Thank you very much.

    Like

    1. Hi Alyssa,

      Actually, this depends on the continuation of the quarantine period within the Philippines. Under the current Labor Advisory No. 14-A, Series of 2020, the period where you are off work on temporary suspension during the Community Quarantine is not included in the calculation of your probationary period.

      You are already on temporary lay-off, effective from the start of the ECQ period in March. This means that your employer only has six (6) months from the date of your lay off to reinstate you or provide retrenchment, with separation pay.

      Your question, however, is one that may change in the course of time. While your employer does not want to open prematurely and lose more money, if he remains closed and you remain on the temporary lay-off, then your probationary period may restart before you go back to work.

      According to the Labor Advisory, while you are off work DURING THE QUARANTINE PERIOD, it will not be counted towards your probationary period. Normally, this would stop when you go back to work, and your probation would resume from your first day of working. You can then add the number of remaining days of your probation at the time of the lay-off to the date you resume work.

      The question arises here of your probationary period if the Community Quarantine Period ends before your temporary suspension in over.

      In this case, your probationary period would resume on the day after the final day of quarantine in your area. So if the area where your workplace is located drops from MGCQ to New Normal, then the quarantine is over, and your probationary period would restart. Even if you are not yet back at work.

      Like

  10. Lawrenz

    Good day,
    I would like to ask for an advise regarding my situation. I started last dec 16, 2019 under project based contract who can only work 3 times a week but on January 20, 2020 my contract was under probationary and started to work 6x a week. But on March 17, 2020 the government declared ECQ to Luzon. I was not able to go to work starting that day. The company offered Work from home arrangement which i start on March 21 but stopped on March 31 due to personal issues & was not able to comply on time schedule. Starting april 1 i was not able to work. The company opened on May 4 for stay in employees yet i was not able to join them. May 16, GCQ was declared but though i want to go to work, i can’t because i am pregnant. Under GCQ guidelines, pregnant women are not allowed to go out. My contract will end on June so i advised my immediate supervisor what should i do. She said she will coordinate to HR but later on they said Work from home is not workable for me. They decided to terminate my probationary contract dated June 13, 2020. They send a copy of it on my email.
    Am i qualifed on SSS unemployment benefit ?
    Does my probationary period wont be extended due to quarantine?
    Hope you may enlighten me. Thanks in advance

    Like

    1. Hello,

      The probationary period for the extent of the Community Quarantine was extended for the period that you were not working through the lockdown. Since you stopped working on March 31, and were not able to go in to work to date, your period of probation is extended up to the point where your employment opens again and you are no longer on No Work No Pay. For pregnant women, this would be once your work area drops from GCQ to MGCQ or the New Normal. This means your probationary period was suspended after you had worked for 71 days of the 180 day period. This still leaves 109 days (around 3 months 19 days) of your probationary period to run after your return to work. If you go back on Monday, assuming it changes to MGCQ, your last day of probation will now be around October 2, 2020.

      If you are terminated, it does qualify you as involuntary unemployed, which is one of the requirements for the benefit. However, you do need to meet all of the requirements, which includes having three years of SSS contributions (does not have to be continuous) with at least 12 months within the 18 months directly prior to your claim for benefit. You can read more about the SSS Unemployment Benefit here:
      https://www.moneymax.ph/government-services/articles/sss-unemployment-benefits
      and here:

      Click to access DownloadContent

      I hope this helps.

      Like

  11. jen acidre

    Please enlighten me. I am working for a BPO company. I am on probitionary employment starting dec.16, 2019 and was told that they will do a 5th month evaluation on our performance. Due to the pandemic most of my wave mates wasnt able to work onsite from March 16. April 14 Ive tried to work onsite staying on the sleeping quarters for a week temporarily while im waiting for my internet connection to be installed. After a week i was put on Force Leave again bec there was a problem in the installation.1st week of May when I started WFH. Then June 5th a I have received a letter from our HR that my probation period ended and separation effective date is on June 10 2020 due to not fulfilling the conditions of employment based on performance. But what metrics can they count if I/we are not able to work full month in a specific month due to the situation. Please advice me on this. Thank you

    Like

    1. Hello Jen,

      Prior to the lockdown on March 16, you had already been employed for three months. Subsequently, you worked one week in April, and then continued on a WFH basis from the first week in May. To date, this would give you around 4+ months of service within your 180-day probationary period. While this may not be the fifth-month evaluation that was initially given, the company is within its rights to make that evaluation whenever it sees fit during your probationary period.

      Under the Labor Code, the assessment and appraisal of your performance for regularization is solely guided by the company, based on their own company policies on the reasonable requirements for regularization.

      What those metrics are is something that is decided by the company, and has no basis in the Labor Code, other than to stipulate that management prerogative dictates their performance appraisals. No specific requirements are laid out as to what the company should use in deciding on the performance of probationary employees, except to state that said requirements for regularization must be made known to the probationary employee on or before his first day of employment.

      You can ask to see the performance appraisal used by the company, though they are not required to give you the actual copies unless you make a complaint with the NLRC. But that does not mean that they have done anything wrong.

      From what you have said, the company have appraised your performance and decided that you have not met the requirements for regularization. The only legal requirement here is that, if the company has a policy for appraising probationary employees (such as regular performance assessments, coaching sessions, PIPs, etc.), they MUST be followed and documented correctly. The failure of the company to properly follow their own Code of Conduct and Company Policy on performance appraisals can, in some cases, render the termination improper, though still not illegal.

      I hope this answers your query.

      Like

  12. Neil Z. Limbadan

    Dear Charles.

    Our firm is a construction company. Because of this COVID-19 situation, almost 90% of our construction projects had been stopped or put on hold by the owners.

    We informed our affected workers of this situation. We also told them that since almost all the company’s projects are suspended or put on hold, they have no current assignments for the meantime and they are on forced leave and will inform them ASAP if they will resume their work.

    Is this action justified under the FWA guidelines?

    Thank you.

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    1. Good Morning Neil,

      Actually, yes it is. During the first part of the COVID-19 pandemic, it was issued that construction work must cease, especially during the first Community Quarantine and the later ECQ situation.

      While “forced leave” is not always an ideal way to put it, advising your employees that they would not have work for the interim period of the ECQ was the right thing to do. This was known by the government as the No Work, No Pay scheme of the FWAs.

      Forcing them to take or use their leave credits, however, is not permitted, so as long as you did not force them to use their accrued leave, and all those that used their accrued vacation leave did so voluntarily, then you have done nothing wrong.

      I hope this information helps.

      Like

      1. Ma Vibien Efondulan

        My friend is 6 weeks pregnant and she wants to work from home due to covid risks on her and her baby however the company did not allowed her when she talked to their HR and her bosses. They said that there are also some employees who are pregnant but still reports for work. What can she do? Is there an existing labor law that pregnant women are not allowed to go out during pandemic?

        Like

      2. While it may be better for your friend to work from home while she is pregnant, there is no requirement of the employer to permit her to do so. Alternative Work Schemes and Work from Home arrangements are governed under the Telecommuting Act (Republic Act No. 11165) and Labor Advisory No. 17, Series of 2020. However, they come under Management Prerogative when it comes to deciding whether an employee is permitted to work at home.

        While she may be at a higher risk than other employees, at six weeks pregnant, there is less risk than later in the pregnancy, and simply by observing the requirements of face masks, face shields, social distancing, and good hygiene, she can avoid being infected while at work or while commuting. Following the recommended safety precautions will reduce the chance of infection, whether she is pregnant or not.

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  13. I need a reaction please as per information below

    Our company is in financial difficulty during this crisis..as such we are planning to adopt some assures to alleviate the financial burden considering that we have zero revenue for three months now..

    Company Condition;;;; All identified benefits are suspended (not a deduction) and will be refunded
    gradually soon as normal operation resumes and positive revenue generation resumes.

    P.S
    We are a foundation..non profit..

    1… SALARY CUT..MANAGEMENT…20% of take home pay
    2… SALARY CUT..RANK AND FILE 5% fOF TAKE HOME PAY
    3… DELAYED IMPLEMENTATION OF CBA INCREASE(JUNE THIS YEAR)
    4… MONTHLY RICE BENEFIT SUSPENDED FOR ALL EMPLOYEES P..HP 2000/MONTH

    During the entire period of ECQ and lockdown…to this date, all continued 100% of what is due to them.
    Also, all the identified items will be gradually refunded or retrned soon as usual revenues start to normalize.

    Not implementing this is a step closer to complete closure of operatioon.

    Please advice…

    A lot of thanks.

    Noel M. Dumaguit

    Like

    1. While I understand the concerns of your company, being a non-profit organization, I would recommend that you do not make salary cuts for your employees, as this is not permitted under the Labor Code. To reduce salaries without reducing hours and days worked (such as with an FWA) would violate the rule of non-diminution of benefits. I mentioned this in the email that I sent to your Yahoo email address earlier today.

      You are also not permitted under the Labor Code to “suspend” payment of salaries for work done without the agreement of the employees concerned. However, if you get the agreement of the relevant staff members, you may work that out internally, as long as the dates are set in the agreement and the conditions of the agreed withholding of salary is clear.

      The Labor Code starts: “Withholding of wages and kickbacks prohibited. It shall be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the worker’s consent.”

      If you are planning to make this agreement, make sure that you get the signatures of every employee that will have part of their salary withheld with their explicit agreement, without force or coercion, and ensure all signed agreements are witnessed by independent witnesses. Other peer employees make ideal witnesses in these cases, as they do not have ulterior motives.

      The delay in the implementation of your Collective Bargaining Agreement increases can only be handled by the CBA themselves, with an agreement from all members to delay the increase until a pre-set date. Talk to your CBA and make the arrangements. If it is drawn up into an agreement with specific details, it is completely legal.

      The rice allowance is actually the easiest issue to handle. This is not a mandatory benefit, and is given at the discretion of the company, as are any clothing, transport, and other allowances. These can be given and taken away without notice, but giving some notice that it will happen is a better route to take.

      Like

    2. April Ann

      Hi,

      My issue is simple. I’ve been working from home since the pandemic (BPO) and now they are forcing us to work on site cos we are getting somewhat low productivity.

      My question is , is it legal to be sanctioned if I refuse to go work cos I still think its a risk to do it and the pandemic is still terrible right now. There should be other alternatives like force leave or be on no work no pay but they are re-enforcing it.

      Not sure if the guidelines change but I appreciate any insights.

      Thanks

      Like

      1. You don’t say where you are working, but since there is nowhere in the Philippines now that has higher than GCQ status, then yes, they can sanction you, with Due Process, for refusing to go to work. This is considered to be a violation under Article 297 of the Labor Code, Item (a), “Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;” If you continuously refuse to attend work at the office, they can also use Absent Without Official Leave as another ground, both of which are offenses that can result in termination of employment.

        Despite the fact that you may consider it a high risk in going to work, the DTI, DOLE, and DOH no longer find it to be so, and the right to refuse to enter the workplace based on “imminent danger” has been removed since the end of the ECQ period and the publication of the DTI and DOLE Interim Guidelines on Workplace Prevention and Control of COVID-19.

        Just agree to go back to work, or you may find that they will file the violations and terminate you. BPOs are like that, because they have an endless supply of potential employees, and there are thousands of call center workers without jobs right now.

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  14. Pingback: Suspension of Business Operations: Floating Status, Temporary Lay-Off – Employment Law Project

  15. We are a school….and we continue to operate via work at home doing preparations…..as such those whose work cannot be done at home..can they be treated on a no work no pay scheme?
    or can we advice them to use their leaves instead?

    Like

    1. For those employees that are not able to do their work at home during the ECQ, they will normally be on the “no work, no pay” status, unless they opt to use their accrued leave benefits. While you can offer to allow them to use all of their leave credits, you cannot force them to do so. The other alternative available to you is to pay them anyway, if your school can afford to cover their salaries.

      Like

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