The national government has relaxed the community quarantine in the Philippines, lifting the Enhanced Community Quarantine (ECQ) and Modified Enhanced Community Quarantine (MECQ) in most areas, shifting to the less restrictive General Community Quarantine (GCQ) starting 1 June 2020. The shift to GCQ raises one possible issue: can employers compel employees to work and, in case of refusal by employees to work by reason of fear of the coronavirus disease 2019 (COVID-19), impose disciplinary actions, including dismissal?
It is helpful to look back at related issuances from the Department of Labor and Employment (DOLE). On 13 January 2020, during the explosion of the Taal Volcano, DOLE issued Labor Advisory No. 1, series of 2020, on the suspension of work in the private sector by reason of natural or man-made calamity. It is important to note that Labor Advisory No. 1 is not limited to the Taal Volcano explosion, but covers all instances of natural or man-made calamities.
There are two interesting provisions in Labor Advisory No. 1:
- a. Section 3 provides that “[e]mployees who fail or refuse to work by reason of imminent danger resulting to natural or man-made calamity shall not be exposed to or subject to any administrative sanction.”
- b. It cites, as basis, Republic Act No.11058 (“An Act Strengthening Compliance with Occupational Safety and Health Standards and Providing Penalties for Violations Thereof”).
R.A. 11058 is crucial because it explicitly provides that “[t]he worker has the right of refusal to work without threat or reprisal from the employer if, as determined by the DOLE, an imminent danger situation exists in the workplace that may result in illness, injury or death, and corrective actions to eliminate the danger have not been undertaken by the employer.”
THE COVID-19 PANDEMIC
There is no issue that COVID-19 causes serious illness or death and that the COVID-19 crisis is a natural calamity. To recall, the President issued Proclamation No. 922, s. 2020, declaring a State of Public Health Emergency throughout the Philippines due to the COVID-19, and Proclamation No. 929, s. 2020 declaring a State of Calamity throughout the Philippines. Congress bolstered this declaration of national emergency through Republic Act No. 11469, otherwise known as “Bayanihan to Heal as One Act.”
The life-threatening nature of the virus is not affected by the type of community quarantine imposed on a specific area. COVID-19 kills regardless of the classification as ECQ, MECQ or GCQ. The level of risk of transmission, however, brings about the types of community quarantine.
The government, through issuances by various officers, agencies and instrumentalities like the Executive Secretary, IATF and local governments, imposed community quarantine in various areas of the Philippines. The significant differences between ECQ/MECQ and GCQ/MGCQ are:
- (a) strict home quarantine is imposed in ECQ/MECQ, but not in GCQ/MGCQ;
- (b) public transportation is suspended in ECQ/MECQ, but allowed with conditions in GCQ/MGCQ; and
- (c) more companies are allowed to operate in GCQ/MGCQ.
It is a basic principle in labor law that both employers and employees have rights which must be balanced under the law and respected by regulatory agencies. Employers also have the right to exercise its management prerogatives, including the implementation of policies intended to grow the company or, in this COVID-19 crisis, prevent the company from closing due to serious business losses. This balancing act is clear in the recent issuances of the DOLE, including the deferment of holiday pay, the one-month suspension of the probationary period and the authority to enter into agreements reducing wages. The alternative work schemes and flexible work arrangements are suggestions and not compulsory in nature. As previously noted, you do not kill the hen that lays the golden egg.
The DOLE has not released any issuance to the effect that companies cannot compel employees to report back to work during GCQ. On the contrary, the DOLE, hand-in-hand with DTI, issued the Joint Interim Guidelines for Private Workplace COVID-19 Prevention and Control. The guidelines, which cover all workplaces, employers and workers in the private sector, set forth the minimum health standards to reduce transmission, contact rate and infection risk in the workplace. The guidelines do not prohibit work during the community quarantine. In fact, the guidelines even allow work in workplaces with imminent danger situations, providing for stricter precautionary measures.
GROUNDS FOR DISCIPLINARY ACTION / TERMINATION; DUE PROCESS
There is no problem if the company and the employers agree on alternative work schemes or flexible work arrangements to address the threat posed COVID-19. This is the ideal arrangement. After all, this is a common thread in the recent issuances of the DOLE.
In the event that the company decides to require employees to physically report back to work, there appears to be no general excuse to justify the refusal by the employee, provided the minimum safety requirements are met. Public transportation is already available during the GCQ (besides, many employees without private transportation were able to physically report during the stricter ECQ and MECQ). The refusal to report back to work may constitute a willful disobedience of the lawful orders of the employer. Failure to perform the work may constitute serious misconduct. Absences may constitute AWOL or abandonment. Provided there are sufficient grounds and the employer complies with the due process requirements, there appears to be no general prohibition against imposing the appropriate disciplinary action, including termination.
[Note: This is a general discussion. This must not be construed as legal advice. Consult your retained counsel for legal advice.]
- Twin-Notice Rule and Procedural Requirements in Employment Termination Proceedings - June 3, 2020
- When Travel Pass is Needed for Interzonal Travel during Community Quarantine - June 1, 2020
- Can Companies Compel Employees to Work during the General Community Quarantine (GCQ) and Impose Disciplinary Sanctions - May 29, 2020