It was reported in the news recently, that CNN in New York, USA fired three employees who violated company policy by reporting for work unvaccinated against the COVID-19 virus1. Jeff Zucker, CNN chief, was reported to have said that CNN has a zero-tolerance policy on the matter — referring to the policy requiring employees reporting onsite to get vaccinated. In another piece of news, United Airlines will require all its more than 67,000 US employees to get vaccinated by no later than Oct. 25 this year or risk termination2.

Unlike gender or race, for instance, a person’s vaccination status is not currently one of the legally protected characteristics or classifications under federal and state laws, thus, the prevailing sentiment in the US is that employers can legally make employment decisions based on the vaccination status of their employees. The Equal Employment Opportunity Commission (EEOC) of the US has, in fact, issued guidelines providing, among others, that businesses generally may require workers who report onsite to be vaccinated without running afoul of the country’s anti-discrimination laws. However, due consideration and reasonable accommodations must be afforded to employees who refuse a vaccine for religious or medical reasons. To address this conundrum, some states have already proposed legislation prohibiting discrimination in the workplace and elsewhere based on vaccination status.

In contrast, the Philippine government, through the Department of Labor and Employment (DoLE), issued on March 12, Labor Advisory No. 03, Series of 2021 (Guidelines on the Administration of COVID-19 Vaccines in the Workplaces), proscribing the adoption and implementation of a “no vaccine, no work” policy. In the said Advisory, “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.” Furthermore, under Republic Act No. 11525 — “the vaccine card shall not be considered as an additional mandatory requirement for educational, employment, and other similar government transaction processes.”

The intent of the DoLE Advisory and RA 11525 to prohibit discrimination is laudable. By virtue of the advisory and the law, vaccination status may arguably now be considered as a legally protected characteristic or classification, along with gender (Articles 133-135, Labor Code), age (RA 10911; DoLE DO 170, Series of 2017), disability (RA 7277), medical conditions (RA 11166 — HIV/AIDS); civil status (RA 8972), race or tribe (RA 8371), and mental health (RA 11036), among others. Therefore, unlike in the US where employers can discriminate in the absence of a specific law classifying vaccination status as a legally protected characteristic, the employees in the Philippines can cite the DoLE Advisory and law in parrying any attempt on the part of the employer to implement a policy discriminating against unvaccinated employees.

But then, is this absolute?

Note that even under the above-cited laws prohibiting discrimination, there are exceptions. For example, an employer may discriminate as to age or physical disability if it is a bona fide occupational qualification or BFOQ. Case law in fact allows discrimination as to the weight of flight attendants because it is a reasonable BFOQ in the airline industry (Yrasuegi vs. PAL, G.R. No. 168081, 17 October 2008). To justify a BFOQ, the Supreme Court held that the employer must prove two things: 1.) the employment qualification is reasonably related to the essential operation of the job involved; and, 2.) that there is factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job (Star Paper Corp. vs. Simbol, G.R. No. 164774, 12 April 2006).

It is not clear though how this concept of BFOQ will fit into the issue of vaccination discrimination. You can probably make a case for hospitals and other medical institutions and argue that vaccination is reasonably related to the essential operation in the workplace, but this may not be so in other industries.

Perhaps given that Advisory No. 03 is couched in general terms, employers may want to clarify with the DoLE the nature and extent of the prohibition against discrimination. For example, while there should be no discrimination in terms of training, is it discriminatory to segregate the employees and schedule separate training days for the vaccinated and unvaccinated? Or, while everybody is allowed to report for work onsite regardless of vaccination status, can an employer say that all vaccinated employees should occupy the ground floor and the unvaccinated the second floor? Or is the employer allowed to assign a separate shuttle bus for the unvaccinated employees? Medically speaking there may not be difference because now news reports say that even vaccinated individuals can also be infected and can infect others and, therefore, there is no substantial basis to distinguish between the two groups of employees. However, on the other hand, note that the unvaccinated employees are not being deprived of their right to go to work, attend training, or avail of the shuttle service; it is just that they exercise and enjoy these rights under a different set-up or location. Sure, there may be emotional distress or psychological impact at being left out or separated, but could this serve as sufficient basis to hold the employer liable for discrimination? How about the “right” of the vaccinated employees to feel secure or comfortable, at least psychologically?

On another point, do you treat anti-vaxxer employees who do not want to get the jab because of their irrational and unfounded conspiracy theories, differently from those who refuse to be vaccinated on religious and medical grounds? Bluntly, can idiocy be a basis to make a substantial distinction? How I wish it was that easy.

Beyond the employment setting, discrimination against unvaccinated individuals is also a lingering issue. Recently, to presumably address the issue of vaccine hesitancy among the populace, the President allegedly remarked that he will order the arrest of people who refuse to get the jab and that they will not be eligible to get the “ayuda” during the ECQ Part III (enhanced community quarantine, which is the strictest quarantine level). This reportedly forced people to go in droves to vaccination sites, particularly in the cities of Manila and Las Piñas, resulting in chaos and cancellation of inoculations. This was readily dismissed by the Palace as fake news.

Fake news or not, these unfortunate incidents in the said cities — which may well be considered as super spreader events — emphasize the need to come up with an enabling law to implement the general welfare clause in the Constitution, bearing in mind the equal protection clause therein. Hopefully this enabling law will en route also clarify and answer the questions posed above on discrimination in the workplace

1 https://www.theguardian.com/media/2021/aug/05/cnn-fires-employees-covid-unvaccinated-office
2 https://www.cnbc.com/2021/08/06/united-airlines-vaccine-mandate-employees.hml

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

Neptali B. Salvanera is a Partner at the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW), located at Bonifacio Global City, Taguig City, Metro Manila, Philippines.

(632) 8830-8000
nbsalvanera@accralaw.com