Mandatory Covid-19 vaccination for on-site employees

IATF issued a resolution requiring on-site employees to get Covid-19 vaccination. The mandate depends on whether employees are eligible or not for the vaccine. Employees may continue to refuse to get the vaccine subject to them getting and paying for their own RT-PCR tests and, if not available, antigen tests.

1. Employees on-site required to have Covid-19 vaccination

It finally happened. Covid-19 vaccine has been required for employees working on-site.

The Inter-Agency Task Force for the Management of Emerging Infectious Diseases (IATF) issued Resolution No. 148-B, Series of 2021 (henceforth “IATF 2021-148-B”), dated 11 November 2021. In the Resolution, it required all establishments and employers – without exception – “to require eligible employees who are tasked to do on-site work to be vaccinated against Covid-19.”

a. Both private and public

Since the Resolution indicated all establishments and employers, without providing for an exception, this means that this applies to both the private and public sectors.

b. For eligible employees

The phrase “eligible employees” should be carefully considered as these suggest that those who are not eligible are not covered by this Resolution. Since it is not defined in the Resolution, “eligible employees” will be read in its usual or plain and simple language, which means that they refer to those who can medically take the vaccine.

Accordingly, non-eligible employees refer to the opposite or employees who cannot medically take the vaccine for some reason or another. This, however, cannot be presumed. For employees to assert that they are not eligible, they cannot simply make such a claim since it is grounded on a medical reason. Meaning, they have to obtain a medical certificate or clearance.

c. Medical clearance

In the Resolution, non-eligible employees may present any of the following to serve as sufficient and valid proof of ineligibility for vaccination:

1) A medical certificate or clearance from the Municipal Health Office (MHO), City Health Office (CHO), and/or Provincial Health Office; or,

2) Birth certificate.

It is not clear why the Resolution listed birth certificate as one of the valid proof. A birth certificate does not not usually indicate medical information that may be relevant for determining eligibility for Covid-19 vaccination.

2. No termination for employees who refuse vaccination

Notwithstanding, the Resolution clearly stated that eligible employees who continue to refuse vaccination “may not be terminated solely by reason thereof.” Otherwise stated, refusal to get a Covid-19 vaccine is and remains to be not a just cause for dismissal. For an employee to be subject to disciplinary action, including dismissal, it has to be premised on established just causes under the Labor Code and jurisprudence.

One such reason may be submitting a false or fake medical certificate to misrepresent their ineligibility to take the vaccine. Depending on the circumstances, such a misbehavior may constitute serious misconduct and/or fraud which are just causes under the Labor Code.

a. Regular RT-PCR tests at employee’s expense

Further, the Resolution states that employees who continue to refuse Covid-19 vaccination “shall be required to undergo RT-PCR tests regularly at their own expense for purposes of on-site work.” If RT-PCR capacity is insufficient or not immediately available, they may resort to antigen tests.

This provision suggests that the employees who refuse Covid-19 vaccination may continue to report to work and may not be prohibited from doing so by the employer so long as these employees undergo RT-PCR or, if unavailable, antigen tests, at their own expense.

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Reference

1) IATF Resolution No. 148-B, Series of 2021