In March 2021, Bello was quoted as stating that:
“It is not legal for employers to require the employee to be vaccinated [against COVID-19] before they can enter the workplace. There’s no legal basis for that.”
Speaking to reporters on Wednesday, March 3, Bello said employers could be sanctioned with administrative penalties by the government for implementing a “no vaccine, no work” policy.
And yet, he backed down on this Labor Advisory to make this statement, as shown below:
“Companies with limited operational capacities in areas under Alert Level 3 could legally stop the payment of salaries of their unvaccinated workers, according to the Department of Labor and Employment (DOLE).
In an online media forum last Sunday, Labor and Employment Secretary Silvestre H. Bello III explained the said policy will apply to establishments that were allowed by the Inter-Agency Task Force for the Management of Emerging Infectious Diseases (IATF) to operate provided all of their onsite staff are fully vaccinated.
He noted the said condition covers hotels, restaurants, barber shops, spas and other wellness establishments under Alert Level 3.
The said firms, Bello said, are entitled to ask their unvaccinated employees not to report for work so they could resume their operation at a limited capacity.
“Now, if their workers are unable to report for work, the policy ‘no work, no pay’ will be in effect,” Bello said.”
And guess what? He has backed down once again, as you can read below.
Can they do this?
There appears to be a lot of consternation over this policy. Let’s take a look at the latest information being rolled out. Bear in mind that the IATF Guidelines on the Alert Levels System require all establishments operating indoor services for vaccinated customers to ensure ALL staff working are fully vaccinated.
There were several responses to the statement of Bello regarding no work no pay for the unvaccinated workers in establishments that are operating indoors for vaccinated customers.
“The Federation of Free Workers (FFW) questioned the legality of the policy, which it said goes against Section 12 of Republic Act (RA) 11525, which barred the use of vaccine cards as a requirement for educational, employment and other similar government purposes.”
“In my mind, it is illegal and such a policy should be abandoned. They did not show any pity to the ordinary people. His daily wage is his only source [of livelihood] and depriving him of such will starve him and his family. This is unacceptable,” Atty. Jose Sonny G. Matula said.
The Trade Union Congress of the Philippines (TUCP) also raised a similar concern regarding the “no vaccine, no pay” scheme:
“The DOLE Secretary calls it furlough when what it really means is that an unvaccinated employee can now be ordered not to work and denied the right to earn an honest living for his family,” the TUCP said in a separate statement.
The Department of Justice has reiterated that RA 11525 bars companies from requiring their workers to get vaccinated. In a recent statement, Justice Secretary Menardo I. Guevarra said it is not illegal for companies to ask for the vaccine cards of their workers, who have already voluntarily availed of the Covid-19 vaccine.
“The vaccination card is the best proof of vaccination. So if requested to present it, then the employee may present it to the employer,” he said.
“But if the employee is not yet vaccinated, the employer is not allowed under Sec. 12 of RA 11525 to compel the employee to get vaccinated in order to keep his/her employment,” he added.
Apparently, Secretary Bello has retracted the statement wherein he advised that workers could be told not to report for work if unvaccinated, and they could be placed on ‘no work, no pay’ for not reporting to work.
So what can the employer do?
For now, if the employer wishes to open indoors, he must have staff that are all fully vaccinated, but cannot temporarily lay-off those that are not already vaccinated.
Let’s look at the facts and the actual law they are citing.
The law is Republic Act No. 11525, known as the “ACT ESTABLISHING THE CORONAVIRUS DISEASE 2019 (COVID-19) VACCINATION PROGRAM EXPEDITINGTHE VACCINE PROCUREMENT AND AADMINISTRATION PROCESS, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES.”
(Is it me or are these titles getting longer???)
Section 12 of this law states:
“The issuance of a vaccine card is intended to be digital, but shall remain accessible through other means such as printed cards. The DOH, through the Department of Information and Communications Technology, shall develop the LGU-based digital systems and applications that will meet the objectives of the COVID-19 Vaccination Program while maintaining quality, safety, ease of use, and accessibility for all Filipinos: Provided, That the DOH shall maintain a central database of vaccinations, and mandate a uniform format for the vaccine card, the contents of which shall be updated accordingly to always conform with globally accepted standards: Provided, further, That the vaccine cards shall not be considered as an additional mandatory requirement for educational, employment and other similar government transaction purposes.”
The relevant part of the act and the section that the FFW and DOJ are citing is this:
“Provided, further, That the vaccine cards shall not be considered as an additional mandatory requirement for educational, employment and other similar government transaction purposes.”
Ok, so if you need your employees to be vaccinated under the IATF Guidelines so you can open for indoor customers, you need to SEE their vaccination cards so that you know they have been vaccinated, because if they have not, then you cannot open, but the vaccination cards cannot be a mandatory requirement for employment purposes, so you cannot require your staff to provide them, so you cannot open, because the cards cannot be a mandatory requirement for them to work, but if they are not vaccinated, you cannot open, and if you cannot require them provide vaccination cards, how do you know who is vaccinated?
And then DOJ Secretary Guevarra said:
“it is not illegal for companies to ask for the vaccine cards of their workers, who have already voluntarily availed of the Covid-19 vaccine.”
So what the law MEANT to say was that if you want to open for indoor customers, you CAN ask to see their vaccination card, as long as they have not been required to OBTAIN the vaccination and Vaccination Card as a requirement of employment.
So their law should have said:
“Provided, further, That the OBTAINING OF vaccine cards shall not be considered as an additional mandatory requirement for educational, employment and other similar government transaction purposes.”
Well, at least that means they can still open with their vaccinated workers…
You cannot “require” that your employees OBTAIN a vaccination card as a requirement for working, which means you cannot require them to be vaccinated, but if you are opening indoors, then you MUST have a staff that has all been fully vaccinated, whether they serve the indoor customers or not. In a restaurant, even the kitchen staff and cleaners should now be vaccinated in order for the restaurant to serve customers indoors.
So that means you can “ask” if any of your staff have already been vaccinated, and ask to see their vaccination card as proof, as long as you are not “requiring” them to OBTAIN it in order to be permitted to work.
But what about the unvaccinated staff that have been working already since they re-opened?
Bello retracted his statement that said unvaccinated staff can be placed on No Work No Pay, stating that Congress must first pass a law before companies could begin to require vaccinations for their workers.
But if he retracted his statement, it means that the unvaccinated staff CANNOT be placed on Forced Leave so that the establishment can open for indoor services. Because that would be tantamount to requiring them to obtain a vaccination card in order for them to work. Because now we are reverting to the aforementioned Labor Advisory No. 3, Series of 2021, where a “no vaccine no work” policy was declared to be illegal.
While I do applaud the IATF for their attempts to revamp the Quarantine levels in a more efficient and effective way (albeit a very slooooow applause), they have a lot to learn about writing laws. The inclusion of indoor dining, and other indoor services, by requiring employers to ensure their entire staff are vaccinated is a mistake of epic proportions. And one that is going to have repercussions far into the future.
One of which is that it creates a “CATCH 22” situation.
An employer cannot require his staff to be vaccinated and obtain the vaccination card under RA 11525, but he also cannot open for indoor services without ALL working staff being fully vaccinated under the IATF Guidelines.
He cannot open for indoor services if ANY of the staff working are unvaccinated, but to place them on forced leave because they are NOT VACCINATED is not a valid and fair implementation of that management prerogative.
Remember the Establishment Report Form from Labor Advisory No. 17-A Series of 2020? In there, there are a number of codes as reasons to use for placing workers on forced leave, reduced work time, etc.
These codes and reasons do not include Forced Leave for “unvaccinated” employees. While the employee can be placed on Forced Leave (code FCL), the Primary Reason for the adoption of Forced Leave for being “unvaccinated” is not present. And if you put “Other”, you are required to specify the reason you are using.
Which means, if you cannot place the worker on Forced Leave because of the “no vaccine no work” violation of LA 3-21, then you have no option but to PAY your unvaccinated workers to stay home and not work.
So to get around this, employers are likely to use other reasons, such as reducing workforce due to reduced income, financial losses, lack of capital, slump in demand, etc. Personally, I would put this under GOVERNMENT REGULATION, since the government is the one requiring all staff to be vaccinated in order to operate indoor services. And then argue the toss about it all at a later date, IF it comes up.
Suffice to say, while the “mandatory vaccination” issue caused by the IATF Guidelines appears to have been cleared up, at least for now, there are still a number of issues that need to be addressed in this latest clusterfuck* from the IATF. Not the least of which being the potential for dissent from both the workforce and the general populace regarding segregation of customers and segregation of workforce.
And here I thought I had seen the end of “apartheid”** in my lifetime.
* Clusterfuck is a dictionary definition meaning “a disastrously mishandled situation or undertaking”, coined by Clint Eastwood in the film “Heartbreak Ridge”, and is now a term included in the Merriam-Webster dictionary.
** For those here who do not speak Afrikaans, the use of the term “apartheid” refers to the Afrikaans word meaning “apartness”, not the former political stance of racial segregation in South Africa.