The Morality and Legality of a pro bono vaccination and testing for Filipino workers and employees
By Atty. DJ Jimenez
The recent spike of COVID-19 here and around the globe reminds us that this pandemic is far from over. While vaccination and mass testing will be vital weapons in the fight to, at the very least, temper the adverse effects of the COVID-19 pandemic, the many issues on the global distribution of these vaccines, as well as the cost of both the vaccine and mass testing, among others, largely remain to be one of the biggest challenges for many countries and less privileged nations like the Philippines.
While Congress (House of Representatives and Senate) in September 2020, recently passed the “Bayanihan to Recover as One Act,” also known as Bayanihan 2 or the Republic Act No. 11494, granting the President additional authority to combat the COVID-19 pandemic in the Philippines, let us hope that this law will be able to address at the very least, the need of an effective vaccination program and mass testing.
No less than the World Health Organization in its July 2020 bulletin emphasized the importance of taking precautions to prevent similar transmissions aside from staying at home and physical distancing.
While the mandate for an effective vaccination program, as well as mass testing, mainly rests on the government as the guardian of the people, and while generally, the private sector employers are under no legal obligation to initiate a vaccination program for its employees, they can, however, undertake such vaccination programs.
Republic Act No. 11525, Sec 5 allows these private entities the responsibility of carrying out a vaccination program coordination with the Department of Health (DOH), the Department of Labor and Employment (DOLE), and with the Local Government Unit (LGU).
As early as May 2020, the Department of Labor and Employment issued DOLE Labor Advisory No. 18-2020 or the Guidelines on the Cost of COVID-19 Prevention and Control Measures.
Under this advisory, more particularly Section 2, “the employer shall shoulder the cost of COVID-19 Prevention and Control Measures such as but not limited to testing, disinfection facilities, hand sanitizers, personal protective equipment, (PPEs, i.e., face mask) signages, proper training of workers including IEC materials on COVID-19 prevention and control.”
On March 26, 2021, in its Joint Administrative Order No. 2021-0001 of the Department of Health National Task Force Against COVID-19, the Implementing Rules and Regulations of Republic Act 11525 known as “An Act Establishing the Coronavirus Disease 2019 COVID-19 Vaccination Program Expediting the Vaccine Procurement and Administration Process, Providing Funds Therefor and For Other Purposes” was implemented.
Under paragraph 11, Section VII on Specific Guidelines, “No cost of vaccination in the workplace shall be charged against or passed on, directly or indirectly, to the employees. (Department of Labor and Employment Labor Advisory No.3 s.2021 entitled “Guidelines on the Administration of COVID-19 Vaccines in the Workplaces.”)
It is interesting to note, however, that the penal provision in the above rules is limited to the falsification of a vaccine card, which shall be punishable under Act No. 3815 as amended, or “The Revised Penal Code” as well as sale, advertisement, procurement, distribution or administration of COVID-19 vaccines without a valid EUA issued, which shall be penalized based on the appropriate provisions of RA No. 9711, or the “Food and Drug Administration Act of 2009,” and other relevant existing rules, regulations and issuances.
Be that as it may, and as clear as noonday, it bears noting that DOLE Labor Advisory No. 18-2020 and No. 3-2021, as well as RA 11525 mandates that in the event a private sector employer undertakes a vaccination program or likewise requires testing of its affected employees, any cost of such vaccination which includes the inoculation, as well as testing, cannot be passed on to the workers, directly or indirectly. It must be for the account of the employers.
The term “vaccination” covered by these advisories by itself pertains to a process. Thus, both the vaccine and the inoculation are part and parcel of vaccination. Otherwise, the advisory would have limitedly used “vaccine” alone.
Likewise, by analogy, the rationale behind this advisory is that anything that will mainly benefit the employer (even if there is an incidental benefit to the employee) but is for the employer’s convenience, such benefits or privileges is considered. “Supplements” are chargeable by law to the employer and therefore cannot and should not be subject of any concession.
Unlike “Facilities” which can be charged to the employees and which form part of wages. Under the Rules Implementing the Labor Code, they “include articles or services for the benefit of the employee or his family but shall not include tools of the trade or articles or service primarily for the benefit of the employer or necessary to the conduct of the employer’s business” (Book 3, Rule 7-A, Sec. 5.)
They are necessary for the subsistence of the employee and his family; board and lodging are considered facilities. The DOLE Secretary can fix the fair and reasonable value of facilities through regulations. They must, however, be voluntarily accepted by the employee, or they can’t be deducted from his wages. Surely, vaccination hardly qualifies as facilities.
Guided by the laws as mentioned above and existing advisories of the Department of Labor and Employment, it is inevitable that both on legal and moral grounds, the private sector is encouraged to take part in the vaccination program of their respective employees as well as appropriate testing but should take the sole responsibility to shoulder the cost without any discrimination, regardless of the rank and tenureship of its employees. After all, vaccination and affordable and viable mass testing are indeed key weapons to fight COVID-19 pandemic, which, as it appears, is a brutal war that the private sector employees, no less, should also fight.
“Constructive criticism is GOOD, offering solutions is BETTER but taking part in resolving the problem, as well, is BEST.” - The Pinoy Street Lawyer
About the Author: Atty. DJ Jimenez is also known as the Pinoy Street Lawyer. A fair and just, life and law mentor, an advocate of an all-inclusive law against domestic violence, biker, troubadour, and a devoted father. He is happily single and had just recently finished his Master of Laws at the UST Graduate School of Law. Follow Atty. DJ on his social media accounts - @PinoyStreetLawyer on Instagram, Pinoy Street Lawyer on YouTube and like The Pinoy Street Lawyer Facebook Page.