The Fine Line Between Vaccinated and Unvaccinated Employees

Karenina Isabel A. Lampa

Early in 2020, the entire country was caught unawares by the COVID-19 virus, and it seemed as if everything had to be put on hold to curb its spread. Unfortunately, businesses were not exempted from such a turn of events.

Relief came in the form of COVID-19 vaccines, which were deemed crucial in controlling the spread of the virus. Countries, including the Philippines, began vaccination efforts for their citizens. Thus, our President signed into law Republic Act No. 11525 or the “COVID-19 Vaccination Program Act of 2021.”

This did not mean, however, that all citizens in the Philippines were required to be vaccinated against COVID-19. At the time when vaccine supplies were quite scarce, while government officials highly recommended COVID-19 vaccination for the eligible population, they also reiterated that vaccination was not mandatory.

Relevantly, on March 12, 2021, the Department of Labor and Employment (DoLE) issued Labor Advisory No. 3, Series of 2021 (LA No 3-21), which put forth that, while employers shall “endeavor to encourage their employees to get vaccinated,” there shall be no discrimination in the workplace between vaccinated and unvaccinated employees. The DoLE also made clear that a “[n]o vaccine, no work policy shall not be allowed.”

At the time, therefore, absent any law or regulation mandating employees to be vaccinated, and with the clear policy set out in the LA No. 3-21, employers found themselves stuck in a dilemma — to what extent may they encourage employees to get vaccinated such that they cannot be deemed to be discriminating against non-vaccinated employees?

LA No. 3-21 had been encompassing, such that there can be no discrimination in “terms of tenure, promotion, training, pay, and others benefits, among others, or termina[tion] from employment.” In other words, it seemed that LA No. 3-21 intended employers to treat unvaccinated employees as they would their vaccinated employees. This had been the ongoing policy for quite some time.

However, with the trend of going back and forth between stricter and more lenient quarantine measures, and in the country’s efforts to take further its battle against COVID-19, we can now see a gradual shift in the policy on “non-mandatory” vaccination in the workplace.

The distinction between vaccinated and unvaccinated employees was initially put to light due to the Inter-Agency Task Force for the Management of Emerging Infectious Diseases’ (IATF’s) implementation of the “Alert Levels System” in pilot areas. Specifically, the IATF’s Guidelines on the same (IATF Guidelines) imposed a requirement for certain establishments to have a fully vaccinated workforce as a prerequisite for their operations.

Noticeably, under the said IATF Guidelines, the task force limited the list of establishments requiring a fully vaccinated workforce. These include, among others, venues for meetings, tourist attractions, amusement parks, cinemas, food preparation establishments, personal care establishments, and the like. In other words, under the IATF Guidelines, by way of exception rather than the general rule, these specific employers may require only fully vaccinated employees to report for work on-site.

Taking matters further, however, the task force recently issued IATF Resolution No. 148-B, Series of 2021 (IATF Resolution 148-B, S. 2021), which now seems to have more boldly distinguished between vaccinated and unvaccinated employees. IATF Resolution 148-B, S. 2021 provides:

“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.”

There can be no doubt as to the intended policy behind such a Resolution — a covered employer may now require eligible employees, who will perform on-site work, to be vaccinated against COVID-19.

Understandably, the IATF likewise clarified that unvaccinated employees cannot be terminated from employment solely by reason of their vaccination status. However, the IATF imposed a requirement for unvaccinated employees to regularly undergo RT-PCR or antigen tests, at their own expense, in case unvaccinated employees must perform on-site work. Further, under IATF Resolution No. 149, Series of 2021, the task force clarified that the frequency of RT-PCR tests for unvaccinated employees required to work on-site shall be determined by the employer, but should be at least once every two weeks. It is well to recall that under previous DoLE issuances, the cost of COVID-19 testing must be shouldered by the employer. With IATF Resolution No. 148-B, S. 2021, it seems that the employer is relieved of such a burden when it comes to unvaccinated employees who must perform work on-site.

IATF Resolution No. 148-B, S. 2021 took effect on Dec. 1, 2021. However, its implementation remains controversial, with push back from numerous groups questioning, among others, the seeming requirement of a “mandatory” vaccination and/or the act of passing the burden of RT-PCR tests to unvaccinated employees. Hopefully, the relevant agencies such as the DoLE would issue further guidelines to serve as guidance for both employers and employees in implementing this IATF Resolution.

Ultimately, with more aggressive strategies in favor of vaccination, it is perhaps likely that we may soon see the end of the country’s ongoing struggles against the COVID-19 pandemic.

This article is for informational and educational purposes only. It is not offered and does not constitute legal advice or legal opinion.

Karenina Isabel A. Lampa is an associate of the Labor and Employment Department (LED) of the Angara Abello Concepcion Regala & Cruz Law Offices or ACCRALAW.

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