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Management is cautiously excited to re-open business after the lockdown. But an employee refuse 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 are locked down in their homes. But since there is easing of the quarantine measures and businesses are now allowed to slowly re-open, there are heated debate both in open and closed spaces in social media about employee refusal to return to work.

Employee Right To Refuse Work Because of COVID 19

Before I share 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 declaration 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 refuse work?

 
Here are my suggestions
 

  1. Comply with the minimum health and safety standards, both the interim guidelines issued by IATF, DTI, DOH, DOLE and even the ‘return to work guidelines’ being issued by various LGUs.
  2.  

  3. If the company is able, give more. Provide shuttle service, temporary accommodation, do mass 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.
  4.  
    The first two will establish your ‘due diligence’
     

  5. Acknowledge that ’employee believes’ it is his/her right to refuse work onsite, in the present covid-19 danger, and s/he should not be given administrative discipline for it. By recognizing this, it does not mean you agree (remember the debate)
  6.  

  7. Determine among your roster, who can continue WFH, and who will need to report onsite.
  8.  

  9. And among those needed to report onsite, assess (using the checklist/survey form) each employee based on the guidelines issued by the government to determine who are eligible for on-site work.
  10.  

  11. Using the first two items (points 1 and 2) as assurance, formally advise employees ‘who passed the assessment’ for on-site work (based on item 5), to return to work.
  12.  

  13. If employee refuse work, revert back to WFH or explore other options. Negotiate for a win-win solution (LA 17-2020).
  14.  

  15. If the job is not doable in WFH set-up, or employee is not cooperative, advise employee that s/he will be placed in a no work no pay status. Proper documentation is a must. Put in writing that employer have exercised due diligence for the safety and over-all welfare of employees, and all options has been explored but at the end, employee invokes his right to refuse work.
     
    Pursuing an administrative case against the employee for insubordination leading to serious losses may not be illegal, but is it prudent given the health crisis we are in?
  16.  

  17. Augment your manpower and look for other employees who can take on the job
  18.  

  19. Since there is an oversupply of talent in the market, you can also hire a temporary replacement for the employee concerned
  20.  

  21. When the state of calamity is lifted, and imminent danger is gone, then advise the concerned employee to return to work. Employee claim based on LA 01-20 is no longer applicable, DO 198-18 chapter 3 section 6 now applies. But as an employer, if your item 1 is still in place, plus you are generally compliant to DO 198-18, employee can no longer invoke his right to refuse work.
  22.  

  23. If employee still refused, then you can proceed filing applicable administrative cases.
  24.  

  25. If employee gladly return to work as advised, all is good. But if you are the type that hold grudge, you ‘may’ reflect employee refusal to work when you need him/her to restart the business, in applicable score cards or performance reviews, that may have bearing on promotions, salary adjustment or performance bonus (not encouraged though).

 
 

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 advise, and engagement/discussion don’t signify 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.

 
 
 

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