The employee’s right to receive or refuse a vaccine

In a few weeks from now, Metro Manila and parts of the country will mark their first anniversary of being placed under some form of community quarantine. At least until the end of February, Metro Manila and seven other major cities or regions will remain under the General Community Quarantine regime, while other parts of the country will be under the more lenient Modified General Community Quarantine.

We can still vividly recall the deserted streets of the metropolis when the strictest Enhanced Community Quarantine was first imposed last year. Initially, only business establishments belonging to the essential industries were allowed to operate. Even then, not all employees were allowed to report for work due to safety reasons, not to mention the hardships which arose from the suspension of public transportation. To say that the country came to a halt during this period is a clear understatement.

Eventually, businesses and workers alike accepted the grim reality that everyone had to sacrifice and adjust until such time that the current health crisis is controlled or ended.

Thanks to the wonders of modern science, the development of vaccines against COVID-19 (coronavirus disease 2019) came at breakneck speed. Distribution of vaccines already started late last year, and the rollout has now reached more countries.

Hopefully, these vaccines will soon find their way to other parts of the world, including the Philippines. For this reason, businesses have become more optimistic in recent weeks, and everyone is eager to rebound from this health and economic nightmare. At this early on, though, it is interesting to note that one important question is already being raised by both employers and employees alike. Can employees refuse to receive the COVID-19 vaccine?

On one hand, while employees are eager to return to their normal work routine, it cannot be overlooked that some have their own reason/s for refusing to receive the jab. Clearly, this is a matter of personal choice, and our Constitution and laws guarantee an individual’s right to freedom especially on matters relating to one’s health. The State has the mandate to regulate the relations between workers and employers in affording full protection to labor. Also, there is no law or government issuance as of now which mandates the COVID-19 vaccination of employees in the workplace. The employer is merely required to provide for employee testing when needed and to maintain a safe work environment.

On the other hand, employers have the management prerogative to impose any rules and regulations for the conduct of business operations, which includes ensuring a safe and healthy workplace and the integrity of products that they will offer to the public. Towards this end, the Labor Code grants employers the right to dismiss employees who willfully disobey lawful and reasonable orders relating to the performance of their work. The Department of Trade and Industry and Department of Labor and Employment Interim Guidelines on Workplace Prevention and Control on COVID-19 also mandates employees to comply with all workplace measures for the prevention of COVID-19, albeit this seems to contemplate only frequent handwashing, wearing of masks, and physical distancing. From a business perspective, establishments which can disclose that all their employees have been vaccinated against COVID-19 will surely be at an advantage in terms of offering their products and services, not to mention being saved from the attendant expenses and difficulties arising from cases of employee illnesses.

At present, there is valid reason to argue that an employer cannot require current employees to be vaccinated unless a law or government regulation is passed to require COVID-19 vaccination among employees. Consequently, an employer cannot penalize, much less dismiss, employees who opt not to receive the vaccine. The law is clear that employees can only be dismissed if any of the just or authorized causes provided by the Labor Code are present. And arguably, even the just cause pertaining to “willful disobedience of the lawful orders of the employer” mentioned above may not be applicable in this case. An exception may be argued only if the requirement for vaccination directly relates to the performance of the employee’s work and the functions of the employee place him at a conceivable risk of transmitting or contracting the disease.

For example, the Department of Labor and Employment had issued Department Advisory No. 05-10 which requires Hepatitis B vaccinations for those occupations with a conceivable risk of transmission in the workplace, such as healthcare workers.

At this still precarious time for everyone, the delicate balance between management and labor again comes to the fore. With the welcome development of vaccines being rolled out and administered to Filipinos also comes the apparent need for the State to balance its mandate of promoting the right to health of the people, and concomitantly protecting the national economy, versus the fundamental personal freedom of individuals. n This article is for informational and educational purposes only. It is not offered and does not constitute legal advice or legal opinion.

CLARENCE DARROW C. VALDECANTOS is a Partner and the Head of the Labor and Employment Department (LED) of the Angara Abello Concepcion Regala & Cruz Law Offices or ACCRALAW. (632) 8830-8000 ccvaldecantos@accralaw