By George Matthew T. Habacon
THE Department of Education (DepEd) has issued guidelines relating to the opening of classes after the lifting of the quarantines. While there are ongoing debates as to the efficacy of these restrictions, inevitably schools need to adjust to survive. Let us examine certain problem areas in the operation of private educational institutions post-lockdown.
FACE-TO FACE CLASSES: HEALTH RISKS AND LIABILITY FOR INFECTION
The guidelines prohibit face-to-face classes earlier than Aug. 24, and from then on, face-to-face classes may be conducted only in areas allowed to open physically.
Institutions must also comply with minimum health standards that will be issued by the DepEd, consistent with guidelines of the Department of Health, the Inter-Agency Task Force for the Management of Emerging Infectious Diseases, and the Office of the President.
When a school opens classes and conducts face-to-face classes, students and faculty members are exposed to the risk of being infected by the COVID-19 virus considering that the disease is supposedly easily transmitted through physical contact between persons.
One important question is: If they do get infected, can the students and faculty members hold the school liable?
While there is no specific law yet addressing such a novel situation, the infected students and faculty members might raise the issue of negligence under our law on Quasi-Delicts. Under the pertinent Civil Code provisions on quasi-delict, as well as relevant jurisprudence, whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. In order to establish a right to recover, the claimant must establish by competent evidence the following: 1.) Damage to him or her; 2.) Negligence by act or omission of which defendant personally or some person for whose acts it must respond, was guilty; and, 3.) the Connection of cause and effect between the negligence and the damage.
Proving the first and second element is relatively an easier task as these are generally demonstrable facts. Proving the causal connection is a more difficult task. Although this virus is contagious, the contagion period remains to be determined. Recent findings showed that it is contagious even in the incubation period when the patient shows no symptoms. The virus also survives on surfaces for different time periods adding to the incident of transmission. Thus, determining accurately where a person has acquired the virus may be scientifically improbable.
Private school teachers and staff who are registered with the Social Security System (SSS) may try to claim through the existing Employees’ Compensation Program (ECP), a government program designed to provide a compensation package to public and private employees or their dependents in the event of work-related sickness, injury or death. They would need to prove that the disease is included in the occupational diseases covered by ECP.
In employee compensation cases, the claimant must adduce reasonable proof between the work of the deceased and the cause of his death, or that the risk of contracting the disease was increased by the deceased’s working conditions.
ONLINE CLASSES: ACCESSIBILITY TO EDUCATION AND POTENTIAL LOSS OF EMPLOYMENT FOR TEACHERS
Consistent with the principle of preventing infections through elimination of physical contact and interactions among persons, some experts in the field of medicine and education as well as policymakers have strongly pushed for the conduct of online classes. While this may be beneficial to some, it also puts students who have limited, faulty, or no internet access at all at a harsh disadvantage. Thus, can these students and their parents sue a school which conducts classes online exclusively?
This is arguable. The Constitution expressly provides that the State shall protect and promote the right of all citizens to quality education at all levels, and shall take appropriate steps to make such education accessible to all. Hence, a school which exclusively conducts classes online might be violating this constitutional right because as technologically savvy as present Philippine society might seem, a great number of Filipinos still do not have the means to the technology and facilities needed for the conduct of online classes.
However, this is different in the case of private schools. When education is delivered in private institutions, a contractual relationship is created between the students/parents and the schools where both parties have certain rights and obligations. A student or, in reality, a parent is free to choose which school to enroll in, bearing in mind the rules, regulations, and manner of instruction that a private school may impose.
Another possible consequence of conducting online classes exclusively is loss of employment for teachers. In the conduct of online classes, fewer teachers are required because classes can be viewed simultaneously online. Thus, in a scenario where several teaching personnel are laid off due to the existing demands and circumstances of education, can the school be held liable for illegal termination?
The scenario contemplated above is akin to the concept of Redundancy under our Labor Code. Redundancy exists when the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise. Philippine jurisprudence further instructs us that a declaration of redundancy is ultimately a management decision in exercising its business judgment, and the employer is not obligated to keep in its payroll more employees than are needed for its day to-day operations, provided there is actual basis for the declaration and certain procedures are followed.
Being one of the authorized causes for termination of employment under Art. 298 of the Labor Code, a termination of a teacher’s employment due to redundancy is valid provided that the school complies with certain jurisprudential requirements i.e. 1.) written notices requirements; 2.) payment of proper separation pay; 3.) good faith in abolishing the redundant positions; and, 4.) fair and reasonable criteria in ascertaining what positions are to be declared redundant.
CONCLUSION
It is important to note that the World Health Organization (WHO) has stated that “deciding to close, partially close or reopen schools should be guided by a risk-based approach to maximize the educational and health benefit for students, teachers, staff, and the wider community, and help prevent a new outbreak of COVID-19 in the community.”
Perhaps it is equally important to determine if the guidelines issued by our government are responsive to the mandate issued by the WHO than just determining if these guidelines stop the spread of the virus. At the end of the day, there is sufficient basis for a private educational institution to open its doors for as long as it complies with minimum health standards. Private educational institutions must prioritize the health of its students and staff without jeopardizing its students’ right to quality education.
George Matthew T. Habacon is a Partner in Garcia Habacon and Han Law. He primarily handles corporate and commercial matters, commercial arbitration, as well as labor and employment matters. He is currently a lecturer at the University of Asia and the Pacific teaching Conflicts of Law.
