Covid-19 vaccination and alternative work arrangements in the Philippines

More than two years into the Covid-19 pandemic, there appears to be no end in sight for the infectious disease. New cases in the Philippines are again increasing, with the daily new cases breaching the 2,000 mark anew due mainly to the more transmissible variants of the virus.

The government thus continues to advise the populace to secure vaccination and booster shots to ensure herd immunity and for additional protection. The good news is that at present, Covid-19 vaccines are more accessible to the general public. In fact, this has led to about 66% of the country’s population already securing their full vaccination, or a total of around 72,000,000 fully vaccinated individuals in the country.

Due to the relative improvement in the Covid-19 situation in the country in 2022, as compared to 2020-2021, employers in various industries have been exerting efforts to shift back to reporting to office work, as encouraged by the country’s economic managers, if only to revive the economy. At the very least, employers would resort to a hybrid arrangement, mixing work at home with office work during the week. Indeed, due to this resurgence, Philippine 2022 GDP growth was reported to be at 8.3% in the first quarter and forecasted to be about 7% for the second quarter. The fact is during the pandemic, a lot of employees who were placed on work from home and other alternative work arrangements maintained good productivity.

Some employers have determined that requiring their employees to report to the office, even for just two or three times per week, is important for the business due to a confluence of various factors, including the need for more personal mentoring and collaboration, and the maintenance of company culture as well as professional relationships among employees. On the other hand, many employees have learned to adapt to the requirements of clients or customers even while working from home, especially for the professional service firms and the BPO companies.

In the case of the Information Technology–Business Process Management (IT-BPM) industry registered with the Philippine Economic Zone Authority (PEZA), employers have generally clamoured for the continuance of 100% of their workforce being allowed to work from home. However, the Government’s Fiscal Incentives Review Board is of the view that entitlement to statutory fiscal and tax incentives requires ecozone locators to actually operate in the ecozones. By special and temporary concession, the FIRB allowed PEZA registered companies to only have up to a maximum of 30% of their workforce working from home. The remaining 70% of their workforce must perform work in the office (within the economic zone). The government has set this special accommodation to be coterminous with the declared period of a national state of calamity in the country which shall expire on 12 September 2022.

With the increasing number of employees returning to the office, the recent policies of the government have been focused on ensuring the safety of employees performing office work. Despite the initial policy of mandating no discrimination against any employee who refuses or fails to be vaccinated, the current trend in recent issuances would show that there is a continuing effort to afford employees a healthy and safe workplace by encouraging the vaccination of employees.

In making a significant move towards the encouragement of employees to get vaccinated against Covid-19, on 11 November 2021, the Inter-Agency Task Force for the Management of Emerging Infectious Diseases (IATF), issued Resolution No 148-B, Series of 2021 (IATF Resolution No 148-B), which was supplemented by its Resolution No 149, Series of 2021 (IATF Resolution No 149).

These IATF Resolutions provide that in areas where there are sufficient supplies of Covid-19 vaccines as determined by the government, employers shall require their employees tasked to perform on-site work to be vaccinated against Covid-19. This notwithstanding, IATF Resolution No 148-B provides that employees who refuse to be vaccinated against Covid-19 may not be dismissed from employment solely by reason of being unvaccinated. By way of a compromise, the IATF Resolutions mandate unvaccinated employees to undergo Covid RT-PCR tests at their own expense at least once every two weeks for purposes of on-site work. IATF Resolution No 148-B also allows them to resort to antigen tests when RT-PCR capacity is insufficient or not immediately available. Unvaccinated employees who refuse to get tested in accordance with IATF Resolution No 148-B may be placed on forced leave without pay.

Recognising an improvement in the Covid situation, on 27 June 2022, the IATF issued IATF Resolution No 169, Series of 2022 (IATF Resolution No 169), which modified IATF Resolution No 148-B. IATF Resolution No 169 allowed unvaccinated employees to undergo either RT-PCR tests once every two weeks or antigen tests weekly for purposes of on-site work. IATF Resolution No 169 also adds that employees with a recent Covid-19 infection within the last 90 days and those under alternative working arrangements which do not require on-site reporting are exempted from this testing requirement. Similarly, the said testing requirement is also waived for areas under Alert Level 1 Classification (as determined by the IATF), subject to the implementation of clinical-based management and symptomatic testing.

With the recent announcement of President Ferdinand Marcos, Jr. that there will no longer be any further lockdowns due to Covid, it is expected that many more businesses will resume, if not expand their activities, and in the process entice employees to return to work in the office.

This is, however, without prejudice to the continuing prerogative of employers to continue resorting to a hybrid arrangement of enjoining employees to report in the office on a number of days during the work week, and to work from home the rest of the week. This hybrid work appears to be a most appealing arrangement in many jurisdictions.