Mandatory vaccination policies in employment

Some Filipinos have expressed concern about getting vaccinated following reports of people who died right after having been vaccinated

Recent breakthroughs in the development of vaccines against Covid-19 with news that the country is preparing to procure such for deployment have raised concerns from citizens who might be averse to having themselves inoculated.

In a poll of 2,400 Filipino adults conducted by Pulse Asia, 47 percent of the respondents said that they are not willing to be vaccinated while only a third were open to inoculation. 21 percent of the respondents at the time of the survey were undecided.

Some Filipinos have expressed concern about getting vaccinated following reports of people who died right after having been vaccinated. Other factors cited as causes for the negative response is the perceived cost and the belief that vaccination will be of no help in combatting the virus.

The release of the survey results has prompted the government, through the Department of Health, to initiate a drive to inform the general public of the benefits of vaccination and encourage them to take advantage thereof.

This leads us to the question of whether a person may refuse to be vaccinated. So far, the government has been clear in its policy against mandatory vaccination. This means that a person may refuse inoculation.

While such is government’s policy, private establishments may not be so inclined. These establishments and institutions may direct the compulsory vaccination of all their employees and/or members on pain of disciplinary action, perhaps including dismissal.

Absent any guidance on this issue, the current consensus is that following the policy of the government, private establishments and institutions cannot force their employees to get vaccinated or risk dismissal or expulsion.

The Labor Code provides that an employee may only be terminated for just or authorized causes. Just causes involve wrongful acts or omissions of employees while authorized causes refer to circumstances under which the law permits the dismissal of an employee.

The just causes provided under the Labor Code are: Serious misconduct, willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work, gross and habitual neglect by the employee of his duties, fraud, willful breach by the employee of the trust and confidence reposed in him by his employer, commission of a crime or offense against the employer, and analogous causes.

While the authorized causes are: Installation of labor-saving device, redundancy, retrenchment; closure or cessation of business operations and disease.

Current consensus is that following the policy of the government, private establishments and institutions cannot force their employees to get vaccinated or risk dismissal or expulsion.

While at first blush, an employee’s refusal to submit to any mandatory vaccination policy of an employer does not constitute any of the causes for dismissal, this writer opines that it may — depending on the particular circumstances of employment and how the mandatory vaccination policy is crafted.

It is a well-recognized principle in labor law that employers have management prerogative, the right and prerogative to reasonably regulate all aspects of employment, according to its discretion and best judgment. Such right is limited only by law and the reasonableness of these regulations, i.e., that these rules and regulations are necessary or proper for the conduct of its business or concern.

In case an employer wants to adopt a mandatory vaccination policy, such may be justified provided that an employer: 1.) carefully crafts and adopts a reasonable and lawful policy which allows for exceptions in legitimate cases; 2.) makes the same known to its employees; 3.) establishes a connection of relevance between such policy and the duties for which the employees have been engaged to discharge. It would also be an added asset if the policy can follow the rule of reasonable proportionality which dictates that the penalty to be imposed should be directly proportional to the gravity of the offense committed, such that dismissal should only be the last and ultimate recourse and alternative options are provided in case an employee refuses vaccination for legitimate reasons. Lastly, such policy must be exercised in good faith, without abuse of discretion, and with due regard for the rights of labor.