Updated guidance on whether employers can mandate vaccination for their employees

The COVID-19 pandemic continues to ravage society. For the greater part of 2020,
economies were brought to a standstill and lives were lost to the virus. In an effort to
eradicate COVID-19, vaccines have been developed at a rapid pace. Employers are
now contemplating imposing workplace-wide vaccination programs in order to bring
back available workforces and increase operational efficiency. Is this legally
permissible?
Employers' management prerogative to enact measures to keep workplaces safe
Prior to the enactment of Republic Act 11525 (the so-called 'the COVID-19 Vaccination
Program Act'), there was strong legal basis to state that compulsory vaccination can be
validly implemented by employers when it is reasonably necessary, based on scientific
evidence, to keep workplaces safe. There is a greater risk of COVID-19 transmission if
employees are made to report to work physically without first being vaccinated. If
unvaccinated, employees will be unable to perform their duties safely and efficiently,
especially if the job depends on face-to-face interactions.
Employers have a management prerogative to require employees to be healthy and fit
to work. This is pursuant to the principle that employers are free to regulate, according
to their discretion and best business judgment, all aspects of employment – from hiring
to firing – except in cases of unlawful discrimination or those which may be provided by
law.(1)
In Yrasuegui v Philippine Airlines (590 Phil 490 (2008)), the Supreme Court upheld
Philippine Airlines' company policy requiring its employees to be physically fit and
adhere to its weight standards. The Supreme Court held that an employment policy is
valid and justified, provided that it satisfies the Meiorin test (adopted from the Canadian
Supreme Court). Under this test:
(1) the employer must show that it adopted the standard for a purpose rationally
connected to the performance of the job; (2) the employer must establish that
the standard is reasonably necessary to the accomplishment of that work-related
purpose. (Emphasis added.)
Thus, in Yrasuegui, the Supreme Court upheld Philippine Airlines' weight standards for
its cabin crew because its imposition is to ensure flight safety, as "cabin attendants must
maintain agility at all times in order to inspire passenger confidence on their ability to
care for the passengers when something goes wrong". The Supreme Court found that a
cabin attendant's body weight and size are important factors to consider in case of
emergency, since an "overweight cabin attendant would certainly have difficulty
navigating the cramped cabin area".
Under Article 282(a) of the Labor Code, employees may be disciplined, or dismissed,
for just cause in case of "serious misconduct or willful disobedience" of an employer's
lawful directives or policies, such as a valid vaccination policy. However, to discipline or
dismiss employees based on willful disobedience, two elements must concur, per Gold
City Integrated Port Services v National Labor Relations Commission (267 Phil 863
(1990)):

 the employee's conduct must have been willful or intentional, the willfulness
being characterized by a "wrongful and perverse attitude"; and
 the order violated must have been reasonable, lawful and made known to the
employee and must pertain to the duties which they had been engaged to
discharge.
However, management's prerogative to direct vaccination may be superseded:
  if face-to-face interaction in the workplace is not necessary for the employee's
performance of the job (i.e. prior to the COVID-19 pandemic, the employee was
already working remotely);
 by a valid medical reason for non-vaccination; and
 by a valid exercise of religion.
Employees working remotely prior to pandemic
In case of a directive to vaccinate, there is a need to relate the said directive to
employees' duties; otherwise, employees may not be disciplined or dismissed for a
directive that is unrelated to their work pursuant to the Meiorin test. Since the
justification for vaccination is safety in the workplace during face-to-face interactions,
this does not cover employees who have worked remotely full time prior to the
pandemic.
Valid medical reason for non-vaccination
In Gold City Integrated Port Services, the Supreme Court held that, to constitute willful
disobedience, the element of willfulness must not only be intentional, but it must also be
"characterized by a wrongful and perverse attitude". Therefore, employers cannot
discipline or dismiss employees whose disobedience is not accompanied by a "wrongful
and perverse mental attitude".(2) This includes instances when an employee:

 refuses to be vaccinated based on known adverse reactions to medication;

 has comorbidities that may aggravate the side effects of the vaccine; or
 was advised by a competent medical professional not to be vaccinated.
Valid exercise of religion
Religious freedom in the Constitution promotes freedom of individual religious beliefs
and practices.(3) The guarantee of religious freedom comprises two parts:

 the freedom to believe; and

 the freedom to act on one's belief.
The first part is absolute.(4) However, the second part is limited and subject to the
police power of the state.(5) When there is conflict between the free exercise of religion
and the state, the courts will adopt the benevolent neutrality accommodation, whereby:
“with respect to governmental actions, accommodation of religion may be allowed, not
to promote the government's favored form of religion, but to allow individuals and
groups to exercise their religion without hindrance.”(6)
Whereas the state can invoke police power, employers have management prerogative
to rely on and balance with employees' right to freely exercise their religion. In one case,
the Supreme Court upheld the right of an employee to not join a labor union on religious
grounds despite there being a union security clause (which requires compulsory
membership in a union winning a certification election), holding that the free exercise of
religion is superior to contractual rights. The Labor Code also requires employers to
respect the preference of employees as to when their rest days will be in accordance
with their religion. However, to date, there is still no case balancing free exercise of
religion with the prerogatives of management.
Legislation and government's stance on mandatory vaccination
On 26 February 2021 Republic Act 11525 was signed into law by President Duterte.
The Department of Health (DOH) and the National Task Force Against COVID-19 (NTF)
were tasked with the procurement of vaccines.(7) Private entities that have their own
private vaccination program may procure their vaccines only through a multi-party
agreement with the DOH, the NTF and the relevant COVID-19 vaccine supplier.(8)
A vaccine card will be issued to those already inoculated, stating relevant information
such as date of vaccination, brand of vaccine and basic personal information.
(9) Notably for employers, vaccine cards will not be considered as an additional
mandatory requirement for employment, educational and other similar government
transactions.(10)
In a recent publication, the Department of Labor and Employment (DOLE) affirmed that
employees' refusal to be vaccinated is not a ground to discriminate against them. The
publication states that:
“any employee who refuses or fails to be vaccinated shall not be discriminated against
in terms of tenure, promotion, training, pay, and other benefits, among others, or
terminated from employment. No vaccine, no work policy shall not be allowed.”(11)
Consequence of refusal to vaccinate
The COVID-19 pandemic continues to be a costly tragedy for both capital and labor.
Reduction in consumer consumption has drastically affected businesses' cash flow and
the dangers of COVID-19 itself continue to hamper workforces' efficiency.
Understandably, employers may want to hasten their employees' vaccination by
imposing a mandatory vaccination program to recoup their losses caused by the
pandemic. However, the new law and recent regulatory publications by DOLE state, in
no uncertain terms, that the absence of COVID-19 vaccination will not prejudice
employees. You may be looking at a Labor complaint if you insist on vaccinations
before allowing entry to work.
Endnotes
(1) NAFLU v National Labor Relations Commission (202 SCRA 346 (1991)).
(2) Dongon v Rapid Movers and Forwarders Co, Inc (GR 163431, 28 August 2013).
(3) Escritor v Estrada (AM P-02-1651, 22 June 2006).
(4) Gerona v Secretary of Education (106 Phil 2 (1959)).
(5) Ebralinag v Division Superintendent of Schools (219 SCRA, 256 (1993)).
(6) Supra at note 19.
(7) Section 3 of the Republic Act 11525.
(8) Section 5 of the Republic Act 11525.
(9) Section 12 of the Republic Act 11525.
(10) Section 12 of the Republic Act 11525.
(11) DOLE, Labour Advisory 3/2021.