The state of calamity due to COVID-19 in the Philippines was extended, can employees still invoke the right to refuse on-site work?
Yesterday, PRRD (President Rodrigo Roa Duterte) extended the state of calamity in the Philippines by virtue of the Proclamation 1021 series of 2020. The media usually highlights the empowerment of LGUs to access funds and address the crisis urgently.
However, the declaration of a state of calamity also affects business operations because of DOLEs LA 01 s, 2020. It gave employees a reason to refuse (on-site) work because of imminent danger brought by man-made or natural calamity.
The legal definition of “imminent danger” in the context of work can be found in DO 198-18
But this definition is confined inside the workplace, whereas, a state of calamity is larger in scope because it considers a geographic location. Therefore, there is a possibility that a specific workplace is compliant with the occupational health and safety guidelines but the city where the business is located is under a state of calamity. With that, the possibility of a threat to physical or mental wellness.
Refusing on-site work for safety reasons is a basic human right– the right to life.
This is where the problem lies. A clash between employees’ right to refuse onsite work because of COVID-19 and employers prerogative to discipline employees who refuse a lawful order.
When employers gave a lawful order to return to work, but employees invoke LA 01 s. 2020 sec. 3, what will happen next?
Employees can invoke the right to refuse on-site work for safety reasons, but the employer can disagree and give a return to work order. An employer can discipline or terminate an employee for insubordination, and/or absence w/o leave leading to the abandonment of work. But the employee can question this and demand compensation for illegal sanction before DOLE or its affiliate agencies.
In the middle of a pandemic and economic crisis, can we afford the hassle of a labor conflict? Is it worth the time and resources just to determine who is right and demand retribution to the party who is wrong?
While I leave it to the wisdom of the employers and HR pros to determine their best course of action when their employee refused on-site work, I will share a simple checklist that may help both parties to determine whether going thru a labor relations issue is a value-adding choice.
Employers’ Checklist Before Issuing A Return to Work Order (or Employees Checklist before Invoking the right to refuse on-site work)
❑ The company is compliant with the occupational health and safety standards, and DO 198-18/ RA 11058.
❑ The company is updated in remitting payment for the mandatory benefits
❑ The company is still practicing work from home arrangements to jobs that can be done remotely.
❑ 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)
❑ Public transportation is already available in the place where the employee resides or there is an available company shuttle (company shuttle need not be paid alone by employers)
❑ The employee is not comorbid or do not belong to the high-risk group
❑ The employee is not living with comorbid and high-risk individuals
❑ The employee is not living in a barangay where hard lockdown is being implemented
❑ Employees are consulted and agreed to an arrangement wherein employees who are ✓ on item 8 will be required for on-site work.
The 1st 5 items is a must because employees who will question your return to work order and/or disciplinary action will likely raise those issues against the company, and give the employer a hard time before regulatory bodies. Add to that, additional expenses for penalties and alike.
The last 5 items are discretionary but helpful when deciding if you will run after employees.
Likewise, before issuing a notice to explain, please be reminded that substantive due process comes first before procedural. It is kinda awkward if you cannot proceed with disciplinary or retributive action for a case you pursued but cannot substantiate.
Or, assuming the company proceeded with the disciplinary and retributive actions that are questioned before DOLE and lost the case. Time and resources were wasted instead of using the same for value-adding initiatives.
The last 4 items are discretionary, and will not necessarily hold water if you will use this as an argument. If the employer has done its part to safeguard your health, then your argument before regulatory bodies may fall apart.
If a complaint or case will be filed before regulatory bodies, please note that this contentious issue can go either way, it will depend on the regulatory bodies’ appreciation of the context, and facts of the case. Add to that, the Department of Labor and Employment is “pro” labor by default. So employers need to calibrate their strategy.
Can an employee still refuse work?
Yes, as I said at the beginning, the right to life is a basic human life. If an employee believed it is still unsafe to work, it should be respected. What management can do is (over) comply with the regulatory requirements to alleviate the fear of employees. These will also serve as proof of good faith and due diligence when a complaint is filed against the company.
Open communication is the key
Because of the inconvenience that will result from the conflict arising from employees refusal to work, it is better to have open communication, to negotiate for a win-win solution, and to look for alternative ways to deal with the issue at hand. Disciplining employees (or terminating them) is the last course of action.
Do you have a different strategy in mind? Care to share your thoughts?