Management is cautiously excited to re-open business after the lockdown. But an employee refuses work for fear of COVID-19 infection. What can be done?
Related: 5.25.2020- How to Humanely Terminate Employment in Times of COVID-19
Not too long ago, I wrote about employees right to refuse work because of COVID-19. It was not a biggie then because everyone is locked down in their homes. But since there is easing of the quarantine measures and businesses are now allowed to slowly re-open, there is heated debate both in open and closed spaces of social media about employee refusal to return to work.
Before I share a practical management approach to deal with the problem, let’s review my previous article.
There are two prevailing schools of thought about the issue, (1) is Labor Advisory 01 Section 3 and (2) DO 198-18 Chapter III Section 6. So which one applies in a pandemic situation?
The context
- LA 01- The existence of imminent danger resulting from man-made or natural calamity
- DO 198-18 – Imminent danger is confined inside company premises but may or may not be due to a calamity. Likely due to non compliance to international health and safety standards. Employer have reasonable control to create a safe environment ‘inside’ company premises but cannot guarantee the same outside the controlled spaces of work. An Imminent danger, in this issuance, needs to be determined by DOLE.
Applicability
- Is the COVID-19 pandemic a natural calamity?
- Do we have an imminent danger situation?
- The
declarationextention of state of calamity placing the nation under various quarantine categories and restricting movement of people, by the President, an acknowledgement of imminent danger? - Assuming the company and its safety officers over complied with the minimum health and safety standards set by IATF, can they guarantee safety outside the work premises?
So between the two Government issuances, which one will likely be believed or embraced by employees?
The ‘imminent danger’ definition is the point of debate and I will leave it at that.
Going back to the purpose of this article, what can an employer or HR do, when an employee refuses work?
Here are my suggestions
- Comply with the minimum health and safety standards. The company is compliant with Labor Advisories 17, 17a, 17b; DTI and DOLE Interim Guidelines on Workplace Prevention and Control of COVID-19, May 1, 2020; Department Order No. 35, Series of 2020: Construction Safety Guidelines for the Implementation of All DPWH Infrastructure Projects During the COVID-19 Public Health Crisis (May 4, 2020); DOH Department Memorandum No. 2020-0220: Interim Guidelines on the Return-to-Work issued by the DOH (May 11, 2020); Joint Memorandum Circular No. 20-04-A, Series of 2020 (DTI and DOLE Supplemental Guidelines on Workplace Prevention and Control of COVID-19, August 15, 2020). And even with the ‘return to work guidelines’ being issued by various LGUs, when applicable.
- Ensure that you are updated in your obligation to remit SSS, EC, Philhealth, and related statutory benefits. Add to that, you are compliant to the existing Occupational Health and Safety Standards and DO 198-18/ RA 11058
- If the company is able, give more. Provide shuttle service, temporary accommodation, provide testings, give multi-vitamins, enroll employees to HMO/insurances, give hazard pay, etc. Please emphasize though that when extending these, it is only in response to the present situation, and this is NOT a permanent benefit.
- Acknowledge the prevailing ’employee belief’ that it is his/her right to refuse work on-site because of the present COVID-19 danger, and s/he cannot be given administrative discipline for it. By recognizing this, it does not mean you agree (remember the debate)
- Determine among your roster, who can continue WFH, and who will need to report onsite.
- And among those needed to report onsite, assess (using the health checklist/survey form) each employee based on the guidelines issued by the government and/or best health practices, to determine who are eligible for on-site work.
- Using the first three items (points 1 to 3) as assurance, formally advise employees ‘who passed the assessment’ for on-site work (based on item 5), to return to work.
- If employees refuse work, revert back to WFH, or explore other options. Negotiate for a win-win solution (LA 17-2020).
- If the job is not doable in WFH set-up, or the employee is not cooperative, advise the employee that s/he will be placed in a no work no pay status, for a minimum of 6 months (or request employee to file LWOP). Likewise, ensure that there is a clear policy about moonlighting during this period. Proper documentation is a must. Put in writing that the employer has exercised due diligence for the safety and over-all welfare of employees, all options have been explored but in the end, employee invokes his right to refuse work.
Pursuing an administrative case against the employee for insubordination and/or abandonment is always on the table. If it is the wisest and value-adding option, then pursue it.
Otherwise… - Augment your manpower and look for other employees who can take on the job
- Since there is an oversupply of talent in the market, you can also hire a temporary replacement for (the role) of employee concerned. This is the reason for the minimum of 6 months LWOP, so you can hire a temporary replacement
- When the state of calamity is lifted, advise again the concerned employee to return to work
- If an employee still refused, by all means, proceed filing applicable administrative case.
- If employee gladly returns to work as advised, all is good. But if you are the type that holds a grudge, you ‘may’ reflect employee attitude in applicable scorecards or performance reviews, that have bearing on promotion, salary adjustment, or performance bonus.
The FIRST two is a must, though the 3rd is optional but a HUGE ‘pogi’ point in establishing ‘due diligence’ and ‘good faith’
Given the oversupply of talent in the market, what roles in your operations were affected by employee refusal to work, if any.
Disclaimer: The articles found in this blog do not constitute legal advice, and engagement/discussion don’t signify a professional-client relationship. Due diligence is advised. Likewise, subsequent court and administrative rulings, or changes to, or repeal of, laws, rules, and regulations may have rendered the whole or part of this article inaccurate or obsolete.
Hi! Good evening. I just wanted to ask if covid19 is part of the special cases where an employee can resign without rendering the 30 days notice. The situation is the employee was from a WFH setup and was recently asked to report to the site. Unfortunately, there was another employee that tested positive within their office and she felt that was a health risk for her and her family. She asked if she can render by WFH but the employer did not agree. Hope you can help me with this. Thank you.
wfh rendering should be acceptable since the employee has been allowed previously to wfh
If the employer insisted that the employee continue to report to the site and declined the request to WFH can it be considered as an exception to render 30 days?
Employer need to justify why rendering cannot be done in wfh arrangements. If turnover, it can be done onsite in a week’s time.
Hi. We are a dental company and one of our dentists haven’t been reporting to work since March 2020. We advised her to return to work last March 2021 but she said she’s still waiting for her 2nd dose of vaccine so we allowed. Now, she has not been responding to our messages or calls. We will be sending a notice to return to work through email and mail. If employee still refuse to work, can we start counting AWOL on her? Or what other options can we do? Thank you so much in advance.
Did you ask her to file for extended leave with an end date or you just allowed him/her to be absent?
We just allowed her. No formal filing of leave was done even from the start.
It’s unfortunate that there is no documentation.
But you can proceed sending RTW, then AWOL, then abandonment of work if your end game is to terminate employee