No Vaccine, No Work?

CNN in New York recently fired three employees who violated company policy by reporting for work unvaccinated against the Covid-19 virus. [1]

CNN chief Jeff Zucker reportedly said the media outlet has a zero-tolerance policy on requiring employees reporting onsite to be vaccinated. In other news, United Airlines will also require its more than 67,000 US-based employees to be vaccinated by no later than October 25 of this year or risk termination. [2]

Unlike gender or race, a person’s vaccination status is not presently a legally-protected characteristic or classification under US Federal or State laws. Yet, the prevailing sentiment in the US is that employers can legally make employment decisions based on the vaccination status of their employees. The Equal Employment Opportunity Commission (EEOC) of the US has, in fact, issued guidelines providing that businesses generally may require workers who report onsite to be vaccinated without running afoul of the country’s anti-discrimination laws.

However, due consideration and reasonable accommodations must be afforded to employees who refuse a vaccine for religious or medical reasons. To address this conundrum, some States have already proposed legislation prohibiting discrimination in the workplace and elsewhere based on vaccination status.

In contrast, the Philippine government, through the Department of Labour and Employment (DoLE), issued on March 12, Labour Advisory No. 03, Series of 2021 (Guidelines on the Administration of Covid-19 Vaccines in the Workplaces) proscribing the adoption and implementation of a “no vaccine, no work” policy.

In the advisory, “covered establishments and employers shall endeavor to encourage their employees to get vaccinated. However, any employee refusing or failing to be vaccinated shall not be discriminated against in terms of tenure, promotion, training, pay and other benefits, among others, or terminated from employment.” Furthermore, under Republic Act No. 11525, “the vaccine card shall not be considered as an additional mandatory requirement for educational, employment and other similar government transaction processes.”

The intent of the DoLE advisory and RA 11525 to prohibit discrimination is laudable. By virtue of the advisory and the law, vaccination status may arguably now be considered a legally protected characteristic or classification, along with gender (Articles 133-135, Labour Code), age (RA 10911; DoLE DO 170, Series of 2017), disability (RA 7277), medical conditions (RA 11166 — HIV/AIDS), civil status (RA 8972), race or tribe (RA 8371) and mental health (RA 11036).

So, unlike in the US where employers can discriminate in the absence of a specific law classifying vaccination status as a legally-protected characteristic, employees in the Philippines can cite the DoLE advisory and law in parrying any attempt by an employer to implement a policy discriminating against unvaccinated employees.

But is this absolute?

Note that even under the above-cited laws prohibiting discrimination, there are exceptions. For example, an employer may discriminate as to age or physical disability if it is a bona fide occupational qualification (BFOQ). Case law allows discrimination as to the body weight of flight attendants because it is a reasonable BFOQ in the airline industry (Yrasuegi vs. PAL, G.R. No. 168081, 17 October, 2008).

To justify a BFOQ, the Supreme Court held that the employer must prove two things: 1) the employment qualification is reasonably related to the essential operation of the job involved and 2) there is factual basis for believing all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job (Star Paper Corp. vs. Simbol, G.R. No. 164774, 12 April, 2006).

It is unclear how this concept of BFOQ fits into the issue of vaccination discrimination. A case can probably be made for hospitals and other medical institutions to argue that vaccination is reasonably related to the essential operation of these workplaces, but this may not be so for other industries.

Perhaps, given that Advisory No. 03 is couched in general terms, employers may want to clarify with the DoLE about the nature and extent of the prohibition against discrimination.

For example, while there should be no discrimination in terms of training, is it discriminatory to segregate the employees and schedule separate training days for the vaccinated and unvaccinated? Or, while everybody is allowed to report for work onsite regardless of vaccination status, can an employer say all vaccinated employees should occupy the ground floor and the unvaccinated the second floor? Or is the employer allowed to assign a separate shuttle bus for the unvaccinated employees?

Medically speaking there may not be a difference given that even vaccinated individuals can also be infected by Covid-19 and can infect others so there is no substantial basis to distinguish between the two groups of employees. However, the unvaccinated employees are not being deprived of their right to go to work, attend training or avail of the shuttle service. It is just that they exercise and enjoy these rights under a different set-up or location. Sure, there may be emotional or psychological distress at being left out or separated, but is this a sufficient basis to hold the employer liable for discrimination? How about the “right” of vaccinated employees to feel secure or comfortable?

On another point, are employees who do not want the jab due to unfounded conspiracy theories to be treated differently from those who refuse to be vaccinated on religious and medical grounds? Bluntly, can different logical reasoning be a basis to make a substantial distinction? How I wish it was that easy.

Beyond the employment setting, discrimination against unvaccinated individuals is also a lingering issue. Recently, to address vaccine hesitancy, the President allegedly remarked that he will order the arrest of people refusing to get the jab and that they will be ineligible for the “ayuda” during the ECQ Part III (enhanced community quarantine, the strictest quarantine level). This reportedly forced people to go in droves to vaccination sites in Manila and Las Piñas resulting in chaos and cancellation of inoculations.

Fake news or not, these unfortunate incidents – which may be considered super-spreader events – emphasize the need to come up with an enabling law to implement the general welfare clause in the Constitution, bearing in mind its equal protection clause. Hopefully this enabling law will also clarify and answer the questions posed above on discrimination in the workplace.

[1] https://www.theguardian.com/media/2021/aug/05/cnn-fires-employees-covid-unvaccinated-office
[2] https://www.cnbc.com/2021/08/06/united-airlines-vaccine-mandate-employees.hml

This article first appeared in Business World, a newspaper of general circulation in the Philippines. The views and opinions expressed in this article are those of the author. This article is for general information and educational purposes, and not offered as, and does not constitute, legal advice or legal opinion.

Atty. Neptali B. Salvanera is a Partner and Monitor of the Labor and Employment Department of the Angara Abello Concepcion Regala & Cruz Law Offices.