- Both employers and employees may have legitimate but opposing interests on vaccination.
What do we know so far about vaccination in relation to employment?
1. Employers are aiming to increase the number of vaccinated employees in their workforce and workplaces.
2. Employees have the right to refuse and under no obligation to be vaccinated.
These are the diametrically opposite interests between the employer and employee. To understand better both sides, let’s discuss each point.
For the employers, they may be aiming for an increase in the number of vaccinated employees for several legitimate business reasons. These may include but are not limited to:
a) Protecting all employees in the workplace against severe symptoms caused by Covid-19;
b) Ensuring public safety whenever they interact with their customers, and,
c) Contributing in the concerted drive and effort to combat and minimize the spread of Covid-19.
For the empoyees, they may be refusing the vaccination for also legitimate personal reasons. These may include but are not limited to:
a) The full adverse effects of the vaccines are unknown as they are new and were rushed in development;
b) Vaccination is an invasion on their right to privacy and the right to life – in the context of what they can do with their physical body; and,
c) For some, vaccination may be seen as going against their religious beliefs or practices.
With such opposing interests, how do we move resolve this and move forward?
3. Management Prerogative and PH Labor Law
When faced with a unique situation, particularly if there is no legal precedent, the relationship between management prerogative and labor law must be remembered.
Under labor law, management prerogative is the inherent right of the employer to regulate all aspects of employee according to its discretion. Management prerogative is limited only by: (a) good faith, and (b) employee rights.
Hence, to recall, the relationship and thus the framework for analysis is as follows:
- Management prerogative is the general rule.
- Labor law is the exception.
Otherwise stated, employers may implement workplace policies and regulations according to their discretion. The only limits being are that these should be in good faith and with due regard to the employee’s rights.
With the legal framework set, we now apply it to the case involving vaccination of employees.
4. Employer action
a. May employers validly exercise its management prerogative to require employees to get vaccinated?
No, employers may not validly exercise its management prerogative to require employees to get vaccinated.
First, management prerogative does not extend to the person or life of the employees. Management prerogative refers to regulation of all aspects of employment, but not the person or life of the employees.
Second, it will go against the employee’s consent. As an individual human being, the employee has the right to choose and decide on matters regarding his body. If a person refuses to take the vaccine, it should be respected. To drive home the point, it is similar to a patient refusing a life-saving surgery; no matter how vital a medical procedure is, if the patient refuses to give cannot, a doctor cannot do anything about it.
b. May employers penalize employees who refuse to take the vaccines?
From our discussion in the immediately preceding section, it is clear that employers may not penalize employees who refuse to take the vaccine. The employees have the right to refuse and exercising such right is not a violation.
As such, the employer has no just cause to initiate due process and disciplinary action. Refusal to be vaccinated is not serious misconduct as it is well within the rights of the employees. Neither may it be considered willful disobedience of a lawful order by the employer, who has no right to make such orders. Other just causes are also not applicable for similar reasons. Without a just cause, there is no basis for initiating due process nor is there any reason for imposing disciplinary action.
c. What may employers do?
Employers may provide for privileges and incentives to vaccinated employees to encourage those who are non-vaccinated to take the vaccine.
These may include but are not limited to:
- Overtime work privilege
- Holiday work privilege
- Special non-working day privilege
- Special leave credits
In this approach to give privileges and incentives, the employee’s right to refuse vaccination is not being violated. The non-vaccinated employees are not being forced to take the vaccine; neither are they being penalized for not undergoing vaccination.
5. No discrimination for different treatments
Granting privileges and incentives to only vaccinated employees do not violate any discrimination laws.
Lawyer, Author, Mentor