A Philippine employer’s guide to legal compliance in the procurement and administration of Covid-19 vaccines

More than a year has already passed since the Covid-19 pandemic began, yet the Philippines is still struggling to slow down the spread of the virus. New cases per day continue to reach four digit figures despite the mandate for the continued implementation of strict public health standards nationwide. The government’s quarantine measures in the NCR Plus (the National Capital Region plus four adjoining provinces), however, appear to have worked with the continuing decline of new cases along with the reduced positivity rates in the extended area.

As an integral part of its plan to respond to the Covid-19 pandemic, the national government has always maintained its stance of ensuring the vaccination of at least seventy percent (70%) of the local population in the near future. In order to reach its national vaccination goal, the national government consistently underscores the need for a whole-of-society approach, where employers in the private sector and other local private organisations are engaged to collaborate and work closely with the government to achieve a unified and co-ordinated Covid-19 vaccination programme.

Hence, to supplement the efforts of the national government, employers have been called upon to adopt a Covid-19 vaccination policy in the workplace. Specifically, private employers are given the prerogative to undertake the procurement of their own vaccines and administer the inoculation thereof to their employees, or to merely rely on the government’s programmes for the procurement and administration of vaccines for their employees. In the former case, however, employers are not allowed to charge or pass on the relevant costs to their employees.

In this connection, the national government recently passed Republic Act No 11525 (RA 11525), or the Covid-19 Vaccination Program Act, to establish general guidelines for employers who intend to procure and administer their own vaccines for their employees. Under RA 11525, an employer may only procure Covid-19 vaccines that are registered with the Food and Drug Administration (FDA) or which possess Emergency Use Authorisation (EUA) and only through a multi-party agreement covering (a) the said employer, (b) the Department of Health (DOH), and (c) the relevant supplier of the Covid-19 vaccine.

RA 11525 likewise sets specific limitations on the use and administration of the Covid-19 vaccines procured by employers. Primarily, employers are prohibited from selling the procured vaccines. The said vaccines are only allowed for the use of the procuring employers, who are then duty bound to ensure that priority inoculation thereof shall be made in favour of healthcare workers, senior citizens, economic frontliners, and essential workers. To expedite the inoculation process and prevent the spoilage of vaccines, however, employers are allowed to formulate their own vaccine recipient list in accordance with pertinent regulations. Employers are also allowed to enter into arrangements with their employees for the designation of other persons as vaccine recipients, at the employees’ own cost.

Under RA 11525, the representatives of an employer who handle the procurement and administration of Covid-19 vaccines are granted immunity from suit and liability with respect to all claims arising out of, related to, or resulting from the administration or use of the Covid-19 vaccines, except those arising from willful misconduct and gross negligence.

In recognition of the experimental nature of Covid-19 vaccines available in the market, RA 11525 also established the Covid-19 National Vaccine Indemnity Fund, to be administered by the Philippine Health Insurance Corporation (PhilHealth), as a trust fund to compensate for any serious adverse effects arising from the use of Covid-19 vaccines. In this regard, RA 11525 decreed the augmentation of the funds of PhilHealth for this purpose in the amount of PhP500m.

On the other end of the spectrum, pertinent regulations also accord employees certain rights with respect to the administration of Covid-19 vaccines in the workplace.

Primarily, employees may not be mandated to get vaccinated against Covid-19. Their respective employers may, at most, only encourage them to get vaccinated. Employees who refuse or fail to be vaccinated may not be discriminated against or terminated by virtue thereof. The implementation of a ‘no vaccine, no work’ policy is also strictly prohibited.

Likewise, employers may not oblige their employees to disclose their vaccination status considering that such status is considered as sensitive personal information. This means that the employer may only validly obtain the vaccination status of its employees if it is with their individual consent or otherwise allowed by our data privacy regulations. Notably, as of date, there are no laws, rules, and regulations which specifically require employees to disclose their Covid-19 vaccination status to their respective employers.

With all these, it is undeniable that even the employers in the private sector have an important role in the country’s implementation of the national Covid-19 vaccination programme. However, while it is understandable that the programme is for the best interests of everyone in the fight against the Covid-19 pandemic, employers are reminded to abide by the cardinal rules discussed above, especially as regards the limitations when it comes to employee’s rights in relation to vaccine administration in the workplace. Ultimately, with the employers’ co-operation and their observance of the laws currently in place for the procurement and administration of Covid-19 vaccines, hopefully, the country will soon be able to achieve herd immunity and see the end of this once in a lifetime pandemic.