PHILIPPINES: An Introduction to Employment
LABOUR AND EMPLOYMENT IN THE TIME OF COVID-19
CHALLENGES, SOLUTIONS, AND THE SHIFT TO A NEW NORMAL
The advent of the COVID-19 pandemic back in early 2020 in the Philippines heralded novel issues and related challenges. As scientific and medical solutions cannot be developed overnight, a number of stopgap measures had to be endorsed and implemented by the government to address these emerging problems.
These issues and corresponding solutions inevitably had an impact on the country’s labour and employment sectors. The most apparent of these would be the repercussions of the prolonged lockdowns, commonly known locally as “community quarantines,” which have been felt all throughout the country.
Consequently, establishments which suffered from the pandemic’s effects were inevitably compelled to adopt measures to minimise these adverse effects. However, a number of employers were still forced to lay off employees or even close shop as the pandemic continued to ravage the country.
Almost two years since the first local case was detected, businesses and employees have since maintained a delicate balancing act between keeping healthy and safe on one hand, and ensuring business continuity as well as meeting economic needs on the other.
Recently, the wider distribution and inoculation of vaccines to the general public has led to a reduction in the number of cases. Paired with the steady loosening of community quarantine restrictions, it seems that a return to normalcy may just be looming on the horizon.
EMPLOYMENT RELATIONS SINCE COVID-19
Employers have since adopted several measures to address the many issues brought about the pandemic. To recall, the Philippines has been implementing community quarantine restrictions of varying degrees since March 2020 with the latest iteration of such restrictions being the most lenient, to date.
a. Alternative Work Arrangements (“AWA”)
Employers have adopted AWA to address the difficulties caused by restrictions on travel and movement. These flexible arrangements allowed employers certain leeway in continuing business operations and providing their employees a steady source of income, despite the unavailability of the traditional on-site setting. Certain examples of AWAs are worker rotations, forced leaves, reduced workdays and telecommuting arrangements. The determination and implementation of these AWAs ultimately depends on the specific needs of the business. Currently, AWA programs are still prevalent notwithstanding the steady reduction of reported cases.
b. Dismissals Based on Authorised Causes Of Retrenchment, Redundancy and/or Closure
An unfortunate consequence of the local lockdowns is the adverse financial and economic impact on local businesses, particularly on small- and medium-sized enterprises. Consequently, several establishments were forced to lay off employees, close shop, or otherwise dismiss employees for authorised causes. Locally, employers enjoy this management prerogative to adopt measures in running the business, as they see fit. This is not an unbridled right, however, and is tempered by the principle of good faith and of legislation protecting the rights of employees.
While the landscape might be different because of the novelty of the COVID-19 pandemic, the requirements for, and the principles in, determining the validity of such dismissals remain the same. Thus, there must be actual necessity for these authorised cause dismissals which must only be implemented as a last resort, and employers may not indiscriminately enact measures to circumvent the rights enjoyed by their employees.
c. Dismissals Based on Just Causes of Serious Misconduct/Insubordination
These just cause dismissals are brought by an employee’s fault or actions, as distinguished from the previous category. One of the relevant initiatives implemented across the country to address the pandemic is the implementation of stricter health protocols. This covers contact tracing, health declaration and quarantine, among others. Certain recent dismissals on these grounds are brought about by failures or violations of such health protocols by employees. These include violation of quarantine or isolation, deliberate misrepresentation in the mandatory health declaration forms, and failure to comply with the other measures adopted by the employer to prevent the risk of infection and transmission.
d. Temporary cessation of business
An alternative remedy in local legislation is the bona-fide suspension of the operation of a business for a period not exceeding six (6) months. This allows employers to temporarily suspend the employment relationship for initially at most six (6) months, following a bona-fide suspension of business operations.
Recognising, however, that the local lockdowns would generally exceed this period, the Department of Labor and Employment (“DOLE”) issued new regulations which granted a further extension of six (6) months, subject, however, to the consent of affected employees.
EMPLOYMENT RELATIONS IN THE NEW NORMAL
As the country’s vaccine rollout program gains more traction, it seems that the Philippines is on track for the complete re-opening of the economy and the country. While it evidently will take time before the situation reverts to its pre-pandemic state, there are likewise several programs available to employers to ease into the new normal.
a. Mandatory Vaccines
The government has encouraged the vaccination of the general public since vaccine stocks became available in the early part of 2021. As part of the country’s vaccination drive, the Inter-Agency Task Force for the Management of Emerging Infectious Diseases (“IATF”) issued Resolution No. 148-B mandating employers to require vaccination for their eligible employees in areas where there is adequate supply of vaccines. Those employees already eligible for vaccination who refuse the available COVID-19 vaccines shall shoulder the costs of their own regular COVID-19 tests, in lieu of vaccination. This directive shall be effective beginning 1 December 2021.
This marks a shift in policy as the government has explicitly mandated vaccination only now through the IATF’s resolution. Previously, employers were only urged to encourage their employees to get vaccinated. Further, all measures against COVID-19 are shouldered by the employers, including the COVID-19 tests. The new policy shifts the cost of testing to the unvaccinated employees. While testing fees have since lowered in terms of cost, such tests are not cheap especially for minimum wage earners.
b. The Omnibus Guidelines on the Minimum Public Health Standards for the Safe Reopening of Institutions
These guidelines contain the minimum standards that must be maintained by establishments in operating during the current pandemic. These standards include the adoption of engineering controls, or those physical interventions or modifications in spaces or environments, as well as administrative controls, or those procedural interventions or modifications in policies, standards and processes.
These controls, plus the implementation of Personal Protective Equipment (“PPE”) measures are geared towards minimising the risk of infection and transmission within the establishment or workplace. The guidelines likewise streamlined the protocols for reporting and handling of suspected and confirmed cases within the establishment.
CONCLUSION
The Philippine experience has not yet discovered a one size fits all solution to these new and emerging challenges. Rather, establishments have implemented a myriad of initiatives specifically tailored to their needs, as what works for one business may not necessarily produce the same results for another. Thus, while the recent trends have been promising, individual and local responses continue to evolve.
Mutual cooperation between the labour and business sectors is integral in their efforts to survive, adapt and even thrive in the new normal. To this end, Villaraza & Angangco is committed to assisting in identifying and implementing sustainable and localised responses in addressing this pandemic.