Providing Mandatory Vaccination for Certain Private Sector Workers

On September 13, 2021, via Video Conference, the IATF approved the “GUIDELINES ON THE PILOT IMPLEMENTATION OF ALERT LEVELS SYSTEM FOR COVID-19 RESPONSE IN THE NATIONAL CAPITAL REGION” during the 139th Inter-Agency Task Force Meeting.

Only currently concerning those businesses within the National Capital Region, these Guidelines are really going to cause some concern in the private labor sector, since they now MANDATE the vaccination of employees in certain areas of Private Employment.

“THEY CAN’T DO THAT!!”

Weeeeeeeeeeell… Yes, they can.

Under the current Emergency situation, the IATF Guidelines are rules that MUST be followed (albeit only temporarily during this Emergency Situation), and are not the same as other departmental “guidelines” (which we will discuss later on).

The Guidelines, which generally approve the implementation of the pilot “GCQ with Alert Level System” in the NCR and provide the correct legal guidelines for such under the current Public Health Emergency, actually state that certain listed private businesses in the National Capital Region can force their workers to be vaccinated.

The mandate comes under Section 3 of the Guidelines, listed as the “GUIDELINES FOR AREAS UNDER ALERT LEVEL 4.” Under these guidelines, areas under Alert Level 4 within the NCR are required to observe certain protocols, which include:

#5. Outdoor or al fresco dine-in services in restaurants and eateries shall be allowed at a maximum of thirty percent (30%) venue/seating capacity regardless of vaccination status. Indoor dine-in services may be allowed at a limited ten (10%) venue/seating capacity but will cater only to individuals fully vaccinated against COVID-19 in addition to their allowed outdoor or al fresco capacity. Provided, that all workers/employees of these establishments have been fully vaccinated against COVID-19. Provided further, that LGUs where these restaurants and eateries are located may decrease the allowable venue capacity. Provided further still, that the joint guidelines of the Department of Trade and Industry and the Department of Tourism promoting MPHS in these establishments i.e., placing of acrylic or similar dividers, regular disinfection, and appropriate seating configuration ensuring social distancing, shall be strictly enforced and observed. The DTI and DOT are directed to issue guidelines promoting safe behaviors in these settings. [Emphasis supplied]

#6. Personal care services limited to barbershops, hair spas, nail spas, and beauty salons shall be allowed at a maximum of thirty percent (30%) venue/seating capacity if such services are conducted outdoors regardless of vaccination status. These establishments are allowed to operate at a limited ten percent (10%) indoor venue/seating capacity but may only cater to individuals who are fully vaccinated against COVID-19 in addition to their allowed outdoor capacities. Provided, that patrons/clients and service providers wear face masks at all times. Provided further, that all workers/employees of these establishments are fully vaccinated against COVID-19. Provided further still, that MPHS shall be strictly maintained. Provided further still, that there is no objection from the LGU where these activities may take place. [Emphasis supplied]

#7. In-person religious gatherings shall be allowed at a maximum of thirty percent (30%) venue/seating capacity if conducted outdoors regardless of vaccination status. These gatherings may be allowed at a limited ten (10%) venue/seating capacity but may accommodate only individuals who are fully vaccinated against COVID-19 in addition to their allowed outdoor capacities. Provided, that pastors, priests, rabbis, imams, or other religious ministers and the assistants of these religious congregations have been fully vaccinated against COVID-19. Provided further, that the religious denominations should strictly observe their submitted protocols and the MPHS. Provided further still, that there is no objection from the LGU where these activities may take place. Outdoor religious gatherings shall be limited to the conduct of religious worship and/or service. Processions and other similar mobile religious gatherings shall not be allowed. [Emphasis supplied]

Which means that, if you work in a restaurant, spa, barbershop, salon, church (or other religious wossname), etc., and your employer is opening up for catering to VACCINATED customers INDOORS, you WILL be REQUIRED to be vaccinated.

Reopening for INDOOR customers during the pandemic

And to my mind, that makes perfect sense. If you are vaccinated and eating out in a restaurant, you want to be served by staff who are vaccinated, have your meal cooked by chefs who are vaccinated, and pay your bill to a cashier who is vaccinated. What is the point of being vaccinated and doing your bit to help eradicate COVID-19 if the guy cooking your food could give you a dose of COVID, albeit a mild one.

You get the idea, I’m sure.

“BUT THESE ARE ONLY “PROVISIONAL”, THEY CAN STILL BE CHANGED!!”

Now, people have already been stating that these are only “provisionally” approved, but that still means they are approved, and the mandate of vaccination for these workers is approved.

And while this may only be the “pilot” episode of the “GCQ with Alert Level System” for the Philippines, to see if it works, it is still being implemented. And no amount of complaining will change what is happening before the end of the “pilot” period.

Covid-19 vaccination

It’s like having a trial period for a computer program, so that you can try out the program for free before you decide to buy it. If it works, you are happy to pay the amount that they will charge. If you don’t like it, you can cancel your trial and not pay anything. Just remember to do it before the trial period ends.

According to IATF Resolution No. 138 Series of 2021, the Guidelines posted here have been “provisionally approved”. The term “provisionally approved”, when applied in law, is determined to mean that approval is granted for a specific time period, though no time period is given in the aforementioned IATF Resolution. This means that it is a “temporary, contingent, or preliminary” approval that will be updated at some unspecified time in the future.

IATF Resolution No. 136-A was superseded temporarily by IATF Resolution No. 137, which temporarily suspended the “GCQ with Alert Level System” in NCR until September 15 OR until the “pilot GCQ with Alert Level System is implemented, whichever comes first.”

As such, this means that the Guidelines, which take effect from September 16 2021, are already approved for use, unless and/or until some other guidelines come into place or the guidelines herein are disapproved and the NCR reverts to its previous state of MECQ, pending further reclassification by the IATF.

So, whether people like it or not, these guidelines are most probably going to be effective from midnight tonight.

“BUT WHAT ABOUT THE LAW PROHIBITING NO VACCINE NO WORK?”

Contrary to “popular opinion”, “Facebook”, and a multitude of “armchair lawyers”, there is NO LAW that prohibits employers from requiring vaccination of their staff. However, there is a Labor Advisory, which we will be discussing shortly.

As for the  issue of the IATF Guidelines requiring staff to be vaccinated in order to work, this means that if the worker refuses to be vaccinated in an establishment where the opening of indoor dining is implemented within the IATF Guidelines, they cannot attend work. As it states; “Provided, that ALL workers/employees of these establishments have been fully vaccinated against COVID-19.” [Emphasis supplied]

The same goes for personal care services operating to cater to individuals indoors. Again, it says “Provided further, that ALL workers/employees of these establishments are fully vaccinated against COVID-19. [Emphasis supplied]

And the same is again true of religious gatherings indoors.

So, if you want to work, and your employer’s business opens to operate indoors under these guidelines, you will not be able to work if you do not get vaccinated. And that could lead to serious consequences.

ISN’T THAT A VIOLATION OF THE DOLE LABOR ADVISORY NO. 3, SERIES OF 2021?

Technically, yes. But it doesn’t matter that it violates a mere “DOLE Labor Advisory”, because a Labor Advisory is not, technically, a law. Whereas the IATF Guidelines are (albeit temporarily only).

Labor Advisory No. 3 Series of 2021 is known as the “Guidelines on the Administration of COVID-19 Vaccines in the Workplaces.”

Something that few people know; “guidelines” issued as Labor Advisories are just that, “ADVISORY”. It is advice given regarding what the DOLE expects to happen, or not happen, but it does not constitute a law, per se.

Yes, I know, we state that Labor Advisories MUST be followed, and to a certain degree, that is correct. And we follow these advisories as if they were laws. But if you notice, there is always something backing them up, such as the fact that a COE is REQUIRED to be given by law, and the DOLE merely advised of a timeline within which to provide it.

Rule XIV, Book V, of the Omnibus Rules Implementing the Labor Code states:

“SECTION 10. Certification of employment. — A dismissed worker shall be entitled to receive, on request, a certificate from the employer specifying the dates of his engagement and termination of his employment and the type or types of work on which he is employed.”

If the employer fails to provide the COE within Three Days, as per LA 6-20, the worker can file a complaint in the DOLE through the Single Entry Approach Form. This will then be set for mediation, at which time the employer will most likely agree to provide it, usually within a time frame agreed on in the mediation.

The same goes for the payment of Final Pay within 30 days. This is only a recommended guideline period, in reality, since there are requirements that the employer can insist on that can extend the period up to indefinitely.

If you have not completed your clearance, or are refusing to sign their quitclaim form, or still have company property, then the employer is legally entitled to withhold your Final Pay until such time as their Clearance Requirement are satisfactorily met. (Milan v. NLRC, G.R. No. 202961, 04 February 2015)

Even in this new LA 3-21, it actually states:

“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.”

This is because it was written BEFORE the IATF Guidelines came out. And it had the backing of the law. If you “discriminate against an employee because of refusing to get vaccinated by denying promotion, refusing training, deducting pay (or withholding it), removing other accrued or contractual benefits and allowances, or resetting their tenure, then you can be charged in the NLRC under a number of Articles of the Labor Code, such as Articles 113 and 116 for deducting or withholding pay; Article 100 for Diminution of Benefits and Allowances; the Constitution for Security of Tenure, and various Articles of the Labor Code and other laws on discrimination.

As for the part about not being terminated from employment, that is simply because it is not a valid ground under Article 297, since there was no law that permitted employers to require vaccination as part of their employment requirements. And for everywhere but NCR, this is still the case. Hence the DOLE can ADVISE that employers cannot terminate for refusal to vaccinate.

But, when it comes right down to it, an Issuance from the DOLE only amends the law if it is issued as a DEPARTMENT ORDER, such as DO 147-15 or DO 174-17

Both of these were originally issued as Labor Advisories, and were later re-issued as Department Orders, which are the ONLY ways to amend a law without approval of the Senate. A Department Order amends the Articles of the Labor Code to change or amend the law, and can only be issued by the Office of the Secretary of the Department of Labor and Employment, who right now is Silvestre H. Bello III.

“BUT BELLO SAID…”

Bello said that it was “illegal” to make vaccination mandatory in the workplace, and that a “No Vaccine No Work” policy “shall not be allowed”.

Yes, he did, didn’t he? That was in his DOLE Labor Advisory No. 3 Series of 2021, signed and approved on March 12, 2021. But a Labor Advisory does not make it law, as shown previously. Which means his statement that it was “illegal” to make vaccination mandatory had no basis in law. In an earlier interview, Bello is quoted to have said:

“Pinag-aaralan namin ‘yan, at magpapalabas tayo ng department order na kung saan hindi pwedeng gawing mandatory ‘yan. Nasa mga empleyado yan kung gusto nyang magpabakuna o hindi. Nasa kanya yan, hindi pwedeng gawing mandatory.”

(We are studying that, and we will release a department order that will prohibit the mandatory vaccination. The employee has the right to choose if he will be vaccinated or not. It’s his choice, you can’t make it mandatory.)

“Pinag-aralan din namin na ‘yung refusal to be vaccinated is not a ground for termination. Magpapalabas tayo ng department order tungkol sa pagpapavaccine ng ating mga employees.”

(We have studied that refusal to be vaccinated is not a ground for termination. We will release a department order for the vaccination of employees.)

But this was NEVER issued as a Department Order. A quick perusal of the DOLE website for Issuances can show that there has never been any Department Order making Mandatory Vaccination illegal. You can check it HERE.

So, even though he said it was “illegal” to make vaccinations mandatory, he had already conceded that the prohibition against mandatory vaccination would need to be issued in a Department Order. Maybe he already knew what the IATF were going to do, and released it only as an Advisory instead, to prevent having to backtrack on a DO that prohibits mandatory vaccination?

Until such time as the DOLE issues that Department Order making “Mandatory Vaccination” illegal, the Advisory will stand as the recommended requirement for employers and the requirements of the IATF Guidelines for NCR MUST be followed. And what do you think the chances of that Department Order happening at the moment are going to be? Slim? Marginal? More likely ZERO!

And that means that, if the employer is opening his business INDOORS to cater to VACCINATED customers, then ALL of his staff MUST be vaccinated.

“I’LL JUST REFUSE. WHAT CAN THEY DO?”

Well, for starters, you can be terminated for Willful Disobedience. The IATF Guidelines require your employer to ensure ALL their staff are vaccinated, and that means his requiring you to be vaccinated because they are opening up indoor service becomes a mandatory requirement of your employment, permitted by the said IATF Guidelines.

If you decide to refuse, you will be refusing the legal orders of your employer, which comes up in Article 297 of the Labor Code as “Willful Disobedience:

Previously, termination for refusing to get vaccinated had no legal basis. Since there was no law that required workers to be vaccinated against anything, refusal could not be considered as Willful Disobedience, and therefore, was not a ground for dismissal.

Now there is a legal requirement, and refusing to be vaccinated can result in losing your job.

“CAN’T I JUST DO FORCED LEAVE INSTEAD OF BEING VACCINATED?”

Actually, no. The whole “No Vaccine No Work” policy cannot be permitted simply because it is not a ground for Temporary Retrenchment. Any employer that places their workers on “floating” status MUST show valid reasons for such, which are clearly given in the Labor Code. Without those valid grounds, and no Bona Fide reason for floating, any employer who refuses to allow his workers to enter without being vaccinated is violating the Labor Code and Omnibus Rules on Temporary Retrenchment.

This can be applied to almost anything that is not covered by Articles 298 and 301, such as No Hair – No Work, No Bag – No Work, No Bike – No Work, or any number of other stupid reasons someone may think of. But it is NOT specifically stated that a policy of No Vaccine No Work is illegal. It is simply NOT INCLUDED in the Labor Code under Articles 298 and 301, which determine Forced Leave.

If your employer decides (foolishly) to place you on Forced Leave (floating) until the vaccination is no longer a requirement (by a change from Alert Level 4 to Alert Level 3), they can be the subject of a complaint in the NLRC for Illegal Suspension resulting in Constructive Dismissal.

Any employer that thinks they can do that is about as intelligent as a bag of spanners.

SO WHAT CAN I DO? I DON’T WANT TO BE VACCINATED.

There are two options for those whose employer is required to mandate vaccinations for ALL workers under the IATF Guidelines and does not want to be vaccinated.

The first option is to request an indefinite Leave of Absence from your employer, and hope that they approve it. As we all know, a Leave of Absence is an agreement for unpaid leave between the employer and employee, requested ONLY by the employee, and is not governed by law. But, as part of Management Prerogative, it is not always approved, and your employer can decline your request.

Which only leaves you with one option – RESIGN! Then go find a job in an industry that does not yet require vaccination.

IS VACCINATION REALLY THE ONLY REAL OPTION TO CONTINUE WORKING?

So, where does that leave the multitude of workers in these sectors in NCR who will be required to be vaccinated if their employer operates INDOORS from tomorrow?

I have not been vaccinated yet. But that is more to do with my own medical condition that anything else. According to my doctors, it may not be advisable for me to get vaccinated until my medical condition improves. Which is why I stay at home, don’t go off to malls and restaurants anymore, and take a variety of measures to ensure that I cannot catch COVID, which could realistically kill me more easily than your average person who is healthy.

But there is nothing wrong with a healthy individual being vaccinated. Even pregnant women are being vaccinated. Around the world, only a few deaths have occurred that have been attributed, whether correctly or not, to the COVID-19 vaccinations.

That said, those few deaths did have underlying conditions as well, so there is no PROOF that the vaccine can kill you. There’s no proof that it won’t either, but the chances of NOT dying are infinitely higher than the chances you will die.

So is there any VALID reason not to get vaccinated? I have yet to hear of a VALID reason from a healthy worker who needs to work in order to feed his/her family. In fact, most people I know have already been vaccinated, and all of them with no side-effects.

DO I HAVE TO PAY FOR THE VACCINATION?

If you work for an employer who is opening up indoors, then the EMPLOYER is REQUIRED to cover the cost of the vaccine if you are not yet eligible to avail of your local LGU vaccination program or if they want it done quickly.

The DOH says that selling of individual vaccinations to private individuals by companies is not permitted. Since the vaccines do not yet have a Certificate of Product Registration, they cannot be offered commercially to individuals. However, private companies can purchase vaccines to be used for their employees, as long as they are not charged to the employee. As stated by the DOLE, the cost of COVID-19 vaccination in the private sector should be covered by the employer.

So, what is the problem here? The IATF are mandating that certain businesses require their employees to be vaccinated IF they are going to open to cater to vaccinated customers INDOORS. That should not be a problem, and has not been a problem with health workers, who were already mandatorily vaccinated.

The vaccines are free anyway, and if you really want to end this pandemic, following the rules of social distancing, masks and face-shields, curfews and restricted travel, and getting vaccinated are the ways to do it. Otherwise, we will still be in this pandemic ten years from now.