On May 1, 2020, the Department of Trade and Industry (DTI) and the Department of Labor and Employment (DOLE) promulgated the Interim Guidelines on Workplace Prevention and Control of Coronavirus Disease 2019 (COVID-19) (“Interim Guidelines”) for the observance of businesses in their respective workplaces.
Here is a quick guide on the protocols prescribed by the DTI and DOLE in order to prevent and control COVID-19 in the workplace as of May 20, 2020.
DUTIES AND RESPONSIBILITIES OF EMPLOYERS
What should employers provide to their employees in the workplace to prevent and control COVID-19? Employers should readily provide the following items to their employees in the workplace:
- Appropriate face masks for workers. Should cloth masks be used, the washable type shall be worn but additional filter material such as tissue papers inside the masks may be added.
- Alcohol and sanitizers at the workplace entrance, corridors, conference rooms and areas where workers pass, and disinfectant foot bath at the entrance, if practicable
- Sufficient clean water and soap in all washrooms and toilets
Can employers deduct the costs of the face masks, alcohol, sanitizers, and similar COVID-19 paraphernalia from the salaries of their employees? No, the employers cannot deduct the cost of face masks, alcohol, sanitizers, and other COVID-19 paraphernalia from the salaries of their employees. This is clarified in the DOLE Labor Advisory No. 18, Series of 2020, dated 16 May 2020.
What should be done if an employee is suspected to have COVID-19? The following protocols shall be observed if an employee is suspected to have COVID-19:
- The employee shall immediately proceed to the isolation area for attention of the clinic personnel. If necessary, transport the suspected employee to the nearest hospital.
- Observe established company protocols for transport of suspected COVID-19 cases and COVID-19 testing.
- The employer shall suspend work for the decontamination of the workplace.
- Decontaminate the workplace with appropriate disinfectant.
- Work can resume after twenty-four (24) hours.
- Workers present in the work area with the suspect COVID-19 employee shall go on a 14-day home quarantine. The clinic staff shall monitor symptoms and possible next steps. If suspected COVID-19 worker has negative result, co-workers may be allowed to report back to work.
What if an employee is sick or has fever, but is not suspected of having COVID-19? The employer must advise the employee to take the following prudent measures:
- Stay at home and keep away from work and crowds.
- Take adequate rest and plenty of fluid.
- Practice personal hygiene.
- Seek appropriate medical care if there is persistent fever, when difficulty in breathing starts, or when the employee becomes weak.
Are employers required to conduct COVID-19 testing for all their employees? No. COVID-19 testing shall only be required for those employees who are suspected of having COVID-19. The company, at its option, may decide to implement COVID-19 testing for all its employees, but it shall first consult its employees and it shall formulate a company policy on COVID-19 testing in conformity with the Department of Health protocols. The company shall also shoulder all the expenses related to the COVID-19 testing.
While some local ordinances are requiring mass testing for establishment before their operations resume, note that as of this writing, the national government is consistent with its opinion that businesses are not required to conduct a mass testing of their employees before they resume operations.
Are employers required to provide shuttle services and/or accommodation in near-site location to its employees to prevent exposure to COVID-19? No. While the Interim Guidelines included these possible measures, they may be adopted only when feasible. Further, in an interview with the Department of Trade and Industry Secretary Ramon Lopez on May 16, 2020, he clarified that the employers may provide shuttle services for their employees especially since public transportation is not yet available in places under the Modified Enhanced Community Quarantine. But they are not required to do so.
Are employers required to provide health insurance coverage to their employees? No. While the Interim Guidelines state that employers may enhance health insurance provisions for their workers, securing a health insurance provider to cover the medical needs of their employees is not mandatory.
Are employers required to adopt alternative work arrangements? In general, employers are not required to adopt alternative work arrangements but they are encouraged to do so, if feasible and if their industries are allowed to operate under the applicable community quarantine guidelines in their respective locations.
Are employers required to pay the salaries of their employees who are working under alternative work arrangements? It depends on the kind of alternative work arrangement being employed. As long as work is performed, such as in the case of a work-from-home arrangement, the employer is required to pay their employees who are rendering work.
Can an employer implementing a work rotation scheme implement a “No Work, No Pay” Policy for those days when the employees are not required to render work? Yes. For those days that the employees are not in work rotation and are not required to render work, the employer may adopt the “No Work, No Pay” policy.
AGREEMENT TO REDUCE WAGES AND OTHER BENEFITS
Can the employer adjust the wage and other wage-related benefits of the employees in order to mitigate the economic impact of COVID-19 and the community quarantines in its business operations? Yes, the employer and the employees may agree voluntarily and in writing to temporarily adjust employees’ wage and wage-related benefits. The adjustment in wage and/or wage-related benefits shall not exceed six (6) months or the period agreed upon in the collective bargaining agreement (CBA), if any. After such period, the employer and the employees shall review their agreement and may renew the same. (Sec. 5, DOLE Labor Advisory No. 17, Series of 2020 dated May 16, 2020 and promulgated on May 18, 2020)
Will these arrangements violate the rule against non-diminution of benefits? No, the restriction on diminution of benefits covers those diminutions or discontinuances done unilaterally by the employer. Adjustments pursuant to this Labor Advisory are voluntary on the part of both the employer and the employees. Furthermore, these arrangements are only temporary in nature.
Can we put off payment of the holiday premium pay? Employees are still entitled to the proper holiday premium pay for regular holidays. However, Labor Advisories 13-A, and 20-2020 clarified that the payment of this premium pay for the following holidays may be deferred until such a time that the present emergency situation has been abated and the normal operations of the establishment is in place. Note, however, that establishments which are closed during these holidays are exempt from paying holiday premium.
Is the employer liable to pay for the internet connection, electricity, and other utilities and expenses claimed to have been consumed by an employee under a work-from-home arrangement? No. The employer cannot be held liable for the cost of utilities of the employee especially because it is impossible to determine the exact amount spent by the employee on utilities that are wholly attributable to the work the employee has done at home. However, the employer may consider providing stipend or allowance as a form of financial assistance to the employee.
TEMPORARY CLOSURE OF BUSINESS
Can businesses temporarily close shop? Article 301 (formerly 286) of the Labor Code allows the temporary bona fide suspension of the operations of a business or undertaking for a period not exceeding six (6) months.
Consequently, affected employees will be temporarily displaced. After this maximum period of six (6) months, however, the employer must recall the displaced employees or dismiss them properly. Otherwise, they will be deemed constructively dismissed and will be entitled to the corresponding payment of full backwages and separation pay.
The paramount consideration in determining the validity of the suspension of business operation is the dire exigency of the circumstances. This will be evaluated on a case-to-case basis.
What is the process for undertaking temporary suspension of business operations? The employer must first notify the proper DOLE Office having jurisdiction over the workplace 30 days prior to the implementation of the temporary closure. Concurrent
notice to the employees must likewise be sent within the same 30 days.
– By the Law Office of Flores & Ofrin