22 Oct 2021 – ‘No jab, no pay’ is patently illegal

By Ruben D. Torres, 22 Oct 2021

NON-payment or withholding of wages for work already done is patently illegal under the Labor Code of the Philippines. Even delay in payment of wages can only be allowed if there is an emergency which makes the timely payment of wages impossible.

The reported nonpayment of wages of unvaccinated workers must be investigated posthaste by the Department of Labor and Employment, and those found guilty should be dealt with accordingly.

Labor Secretary Silvestre Bello 3rd was absolutely correct when he said that nonpayment of wages of workers who refuse to be vaccinated is illegal. Apart from violating the law, employers who refuse to pay their workers their wages, after being required or suffered to work, is unconscionable and constitutes unjust enrichment.

I agree with Sen. Franklin Drilon, who was my immediate predecessor as secretary of labor and employment, that “if work has already been rendered it is illegal to withhold salary regardless of the vaccination status of the worker.” This is very clear in the Labor Code.

While employers cannot force an employee or anybody else to get vaccinated, I maintain that employers have the right to choose only vaccinated applicants. This is a reasonable condition as it is the obligation of the employers to make sure the workplace and the workers are healthy and will not endanger their co-workers and the public. Employers who have unvaccinated workers can of course resort to other reasonable measures, if the work conditions and processes permit, such as daily Covid-19 testing, wearing face masks and social distancing.

I am of the position that under existing laws and regulations regarding health and safety in the workplace and the exercise of the employer’s management prerogative, the requirement for vaccination of workers is legally valid subject only to the test of reasonableness, not discriminatory nor violative of law or contractual obligations.

The pandemic has radically changed how people live, work and play. In many countries, at least at present and most probably in the near future, there are now workplace regulations aimed at preventing morbidities, costly hospitalizations and death.

In the United States and in many other countries, an increasing number of employers have required Covid-19 vaccinations as a condition of employment. In a study by Allen Smith, JD and Lisa Nagete-Piazza, JD, it was noted that “as mandatory Covid-19 vaccines become more readily available, many employers are asking what they can do if workers refuse. Some employers are firing workers who won’t take the vaccine and others are requiring unvaccinated employees to do weekly testing and to take other safety precautions.”

A measure to require vaccination against Covid-19 as a condition of employment can reduce vaccine hesitancy among workers. It will promote a healthy workplace and redound to the benefit of the larger community as a whole.

I maintain that under the Labor Code and the newly enacted Republic Act 11058, the Secretary of Labor and Employment has a legal duty to safeguard the health and safety of workers. Republic Act 11058 entitled “An Act Strengthening Compliance of Occupational Safety and Health Standards and Prescribing Penalties for Violations Thereof” reiterates the powers given by the Labor Code of the Philippines to the Secretary of Labor and Employment to prescribe rules and regulations on safety and health.

Accordingly, a regulation requiring Covid-19 vaccination of workers can be issued sans the passage of an enabling law. The Safety and Health Code of the Philippines is not a legislation enacted by Congress but a valid issuance of the Secretary of Labor and Employment in accordance with the constitutional and legal mandate to assure the safety and health of workers.

I am an advocate of workers’ right to work with fair wages and to safe and healthy work conditions. As secretary of labor and employment, I issued on July 3, 1990 the Safety and Health Code of the Philippines pursuant to the Labor Code and the Constitution. The various safety and health regulations were codified in accordance with Article 162 of the Labor Code of the Philippines. The validity of the Safety and Health Code has never been questioned and was even reinforced in the aforementioned legislation, RA 11058.

It is my position that a new law is not needed, as the incumbent secretary of labor and employment stated, in order to pass rules and regulations to address the new conditions that the Covid-19 pandemic has brought about to the world of work and life in general in our country. I believe that Secretary Bello has the authority to issue health regulations pursuant to RA 11058 and the Labor Code. Section 25 of RA 11058 reiterates the grant of authority to the Secretary of Labor and Employment to set safety and health standards.

Workers who have valid reasons for refusing to be vaccinated need not lose employment for refusing to be vaccinated against Covid, but they could be assigned work that does not entail the presence of co-workers or the public. If this is not possible, the worker must be given an opportunity to get vaccinated at no personal expense. New hires can be required to show proof of full vaccination unless they have valid reasons not to. For instance, a doctor has certified that for health reasons, Covid vaccination is not advisable for the worker or that his/her religious beliefs do not allow vaccination. Workers who have valid reasons not to be vaccinated may still be hired, but the employer can assign work which is not hazardous to his/her health, to co-workers and to the public in general.

I am sure the experts in the Occupational Safety and Health Center can help craft the appropriate health standards to safeguard the health and safety of the workers. In line with the policy of tripartism of the Labor department, employers and workers must have active roles in the formulation of Covid-19 health standards.

E-mail: labormattersph@gmail.com