New IATF Resolution Makes Vaccination Mandatory

Normally, I freely support the actions of the government when it comes to changes in laws around labor and its associated issues, as long as they are not too one-sided. But today I have to disagree with what is being mandated by PRRD.

According to presidential spokesperson Harry Roque, the president has issued a directive to the Inter-Agency task Force (IATF) to employ measures to increase the vaccination of the population. And these new measures will be MANDATORY!

IATF RESOLUTION NO. 148-B

The IATF has today issued RESOLUTION NO. 148-B, Series of 2021, dated November 11, 2021, which states the following:

NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, in compliance with the directives of President Rodrigo Roa Duterte, the IATF approves the following measures to the extent applicable under existing laws, rules, and regulations:

A. In areas where there are sufficient supplies of COVID-19 vaccines as determined by the National Vaccines Operation Center (NVOC), all establishments and employers in the public and private sector shall require their eligible employees who are tasked to do on-site work to be vaccinated against COVID-19. Eligible employees who remain to be unvaccinated may not be terminated solely by reason thereof. However, they shall be required to undergo RT-PCR tests regularly at their own expense for purposes of on-site work. Provided that, antigen tests may be resorted to when RT-PCR capacity is insufficient or not immediately available.

B. As a condition for continuing their operations, public transportation services in the road, rail, maritime, and aviation sectors shall require all their eligible workers to be fully vaccinated.

C. Public and private establishments, even if not required by the Guidelines on the Implementation of Alert Levels System for COVID-19 Response in Pilot Areas to accommodate only fully vaccinated individuals, may nonetheless validly refuse entry and/or deny service to individuals who remain to be unvaccinated, or are merely partially vaccinated, despite being eligible for vaccination. Provided that frontline and emergency services shall continue to render assistance to all persons regardless of vaccination status.

D. Local Government Units (LGUs) are strongly enjoined to issue orders or ordinances to ramp up demand for vaccination by, among others, providing incentives for fully vaccinated individuals, and for business establishments which institute measures that promote vaccination among their employees and clients, and to the extent allowed by law, requiring proof of vaccination before individuals and/or entities may undertake or qualify for certain activities.

E. Upon sufficient proof of a confirmed vaccination schedule, all workers to be vaccinated during work hours shall not be considered as absent during that period.

F. In all of the foregoing, only the presentation of a medical clearance issued by a Municipal Health Office, City Health Office, and/or Provincial Health Office or birth certificate, as the case may be, shall serve as sufficient and valid proof of ineligibility for vaccination. G. All Government Agencies are hereby enjoined to implement measures prioritizing fully vaccinated individuals availing of government programs and services.

OFFICIAL PALACE STATEMENT

In his video statement, palace spokesman Harry Roque Jr. said the Inter-Agency Task Force for the Management of Emerging Infectious Diseases (IATF) approved the mandatory vaccination of eligible on-site workers during its meeting on Thursday.

In areas where there are sufficient supplies of Covid-19 vaccines, Covid-19 vaccination of eligible employees tasked to do on-site work shall be required by all establishments and employers in the public and private sector.

“However, eligible employees who remain to be unvaccinated may not be terminated but they shall be required to undergo regular RT-PCR (reverse transcription polymerase chain reaction) testing, or antigen tests, at their own expense,” he added.

Roque said the approved measures are meant “to increase demand for Covid-19 vaccination”.

Roque said that public and private establishments “may validly refuse entry and/or deny service to individuals who remain to be unvaccinated, or are merely partially vaccinated, despite being eligible for vaccination.”

“Frontline and emergency services, on the other hand, shall continue to render assistance to all persons, regardless of vaccination status,” he added.

“Accordingly, only the presentation of a medical clearance issued by a government health office, or birth certificate, as the case may be, shall serve as sufficient and valid proof of ineligibility for vaccination,” Roque said.

“Moreover, all government agencies are enjoined to implement measures prioritizing fully vaccinated individuals availing of government programs and services,” he added.

MANDATORY VACCINATION

Based on this, vaccination is mandatory for those working ON-SITE in areas where there are sufficient supplies, and where workers are eligible to be vaccinated. Obviously, this does not apply to those NOT working ON-SITE, such as field operatives and those working from home.

What is the level of eligibility? You are considered eligible if:

• You are working on-site;
• You are above the age of 18; and
• You do not have medical clearance to prove you are ineligible.

So if you are required to work on-site by your employer, you are over 18, you are healthy, and there is NOT a shortage of vaccines in your area, you are expected to get fully vaccinated before you can work.

IS THIS AN ISSUE?

It would appear that it may well be another issue for employees, since the issue around mandatory vaccination has already been enshrined in law as being illegal.

Republic Act No. 11525, or the “COVID-19 Vaccination Program Act of 2021”

Mandatory vaccination violates the law, specifically Republic Act No. 11525, or the “COVID-19 Vaccination Program Act of 2021”.

In the original Labor Advisory (LA No. 03-21 Guidelines on the Administration of COVID-19 Vaccines in the Workplace) it was clearly stated that the employee could not implement a “no vaccine no work” policy. And while this was merely an “advisory”, it can be clearly understood because there is no ground in the Establishment Report Form (RKS Form 5 Series of 2020) that permits Temporary Retrenchment for employees that are not vaccinated.

When the IATF recently issued its Guidelines on the Alert Levels System, it included requiring employers only to use employees that were already vaccinated for serving their customers if they offered indoor services, such as in restaurants and spas.

This was challenged by the Federation of Free Workers (FFW) and the Department of Justice (DOJ), and resulted in a clarification that employees could not require workers to be vaccinated in order to go to work. They could only avail of the workers that were already vaccinated to staff their establishments when operating indoor services.

Under Section 12 of the COVID-19 Vaccination Program Act of 2021, it states that:

Provided, further, that the vaccine cards shall not be considered as an additional mandatory requirement for educational, employment and other similar government transaction purposes.

This new directive, issued in the Resolution from the IATF, violates Republic Act No. 11525.

I wonder how they will get around that?

UNVACCINATED EMPLOYEES

While I do not have much of an issue with mandatory vaccination, other than the fact that they did not repeal the relevant sections of RA 11525 before issuing this new IATF Resolution, I do have an issue with the other part of this Resolution.

Harry Roque stated that, under this new Resolution, “eligible employees who remain unvaccinated may not be terminated but instead required to undergo regular RT-PCR testing, or antigen tests, at their own expense.”

So, if you are not vaccinated yet, you can still work while waiting to be vaccinated, or while undergoing the vaccination, as long as you undergo regular RT-PCR testing, AT YOUR OWN EXPENSE!!!

The backtrack of Bello after the argument of the DOJ and FFW still left those that were not vaccinated hanging in such establishments, and that issue has still not been resolved, at the time of writing this article. No issuance has provided what to do if you have unvaccinated employees but are operating indoor services.

Well, this new IATF Resolution seems to have answered that question. They MUST get RT-PCR tests, and pay for it themselves, while they are waiting to get vaccinated.

And that violates the law. Remember Labor Advisory No. 18, Series of 2020, the “Guidelines on the Cost of Covid-19 Prevention and Control Measures”?

Section 2. Cost. – The employer shall shoulder the cost of COVID-19 prevention and control measures such as but not limited to the following: testing, disinfection facilities, hand sanitizers, personal protective equipment (PPEs i.e, face mask), signages, proper orientation and training of workers including IEC materials on Covid-19 prevention and control.

No cost related or incidental to COVID-19 prevention and control measures shall be charged directly or indirectly to the workers.

Since this Labor Advisory, which has NOT been revoked, prohibits employers from charging employees for the cost of COVID-19 testing, the IATF Resolution also violates that Labor Advisory, because it requires unvaccinated employees to get tested at THEIR OWN EXPENSE while waiting to be vaccinated. If they don’t, they cannot work.

Assuming that the employee can be required to be tested regularly for COVID by RT-PCR tests, it should not be at the expense of the worker.

That is in direct violation of the aforementioned Labor Advisory. And THAT is going to cause issues for employees and employers alike.

Let’s imagine a scenario:

The worker is not vaccinated, but wants to work. He is willing to get vaccinated, but he has to wait for the schedule, then wait for two weeks to get the second shot, and then another two weeks to confirm he does not have COVID.

And he refuses to pay for the tests himself, based on Labor Advisory No. 18-20. What happens now?

The first thing that will happen is that the employer (if they are not kind enough and sensible enough to pay for it for their employee) will tell the worker he cannot work.

And since there is no ground in the guidelines for FWAs for temporary retrenchment due to not taking a COVID test, that floating would be done illegally.

And that could result in a case of Constructive Dismissal, since it can be considered as such if the worker is discriminated against in the temporary suspension of the employer-employee relationship.

(If the temporary retrenchment is done without grounds under LA 17, it is considered to be a temporary retrenchment under Article 300 of the Labor Code, which requires 30 days notice. Failure to provide notice can be grounds for constructive dismissal.)

This opens up a whole new can of worms for employer and employee.

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