Workplace Prevention & Control of Covid-19

Cover photo by Edward Jenner from Pexel.com

In order to provide guidelines and safety measures for work places allowed to operate during the Enhanced Community Quarantine (“ECQ”) and General Community Quarantine (“GCQ”), the Department of Health (“DOH”) and Department of Trade and Industry (“DTI”) issued Interim Guidelines on Workplace Prevention and Control of COVID-19 (“DOLE-DTI Interim Guidelines” or “Guidelines”).

Below is a summary of the salient points contained in the Guidelines.

General FAQs

Q: What is the rationale behind the DOLE-DTI Interim Guidelines?

A: The Guidelines were issued to guide the private sector in preparing their respective workplaces for the eventual return to work of workers/employees and resumption of on-site operations in the event such return is already allowed after the ECQ is relaxed. (Section II, DOLE-DTI Interim Guidelines)

Q: Who are covered by the Guidelines?

A: The Guidelines will apply to all workplaces, employers and workers/employees in the private sector. (Section III, DOLE-DTI Interim Guidelines)

Q: What is the role of DTI and DOLE?

A: Both DTI and DOLE shall extend assistance and technical support to all workplaces, employers, and workers in complying with the Guidelines. (Section IX, DOLE-DTI Interim Guidelines)

Q: When did the Guidelines take effect?

A: The Guidelines took effect on 30 April 2020. (Section XII, DOLE-DTI Interim Guidelines)

Workplace Safety And Health Standards – General Policies

Q: According to the Guidelines, what are the basic safety and health standards that employers are required to implement in all workplaces upon resuming on-site operations?

A: These standards are:

1. Increase physical and mental resilience;
2. Reduce transmission of COVID-19;
3. Minimize contact rate; and
4. Reduce the risk of infection from COVID-19. (Section XII, DOLE-DTI Interim Guidelines)

Based on our interpretation, any safety policies or measures that will be implemented in the workplace, on top of the minimum required standards to be discussed below, must be aimed at pursuing the above-mentioned mandatory safety and health standards.

Q: What are the minimum policies or measures that employers must implement in order to comply with the standards on Increasing Physical and Mental Resilience?

A: The employer must perform the following:

1. Emphasize to all their workers the need to perform daily the following, in order to stay healthy: (a) Eat nutritious and well-cooked food; (b) Drink plenty of fluids and avoid beverages; (c) Increase the body’s resistance by having adequate rest and have at least eight (8) hours of sleep; and (d) Exercise regularly.
2. Once enjoined, provide free medicines and vitamins to its employees.
3. Refer to the proper government agencies or institutions those employees who need counselling or are presenting mental health issues. [Section IV(A), DOLE-DTI Interim Guidelines]

Based on our interpretation, the recommendations under Items 1 and 3 are mandatory, while Item 2 is optional absent any other clarification or subsequent directive by the government.

Workplace Safety And Health Standards – Provision Of Personal Protective Equipment And Facilities

Q: In order to comply with the standards on Reducing the Transmission of COVID-19, what are the mandatory Personal Protective Equipment (“PPE”), disinfecting products, and facilities that employers must provide to its employees in the workplace?

A: The employers are to provide the following in the workplace:

1. Face Masks for Employees

Face masks may either be disposable or reusable. If cloth masks are to be used, an additional filter, such as tissue paper, may be added inside the cloth mask. [Section IV(B)(1), DOLE-DTI Interim Guidelines]

The Department of Health (“DOH”) recommends the use of cloth masks for those going out in public, while medical-grade protective apparel shall be used depending on the intended user or setting. (DOH Administrative Order No. 2020-0015)

2. Thermometer

Thermometers, non-contact kind, if possible, for use in screening all employees and visitors prior to the entry in the workplace. [Section IV(B)(1), DOLE-DTI Interim Guidelines]

3. Spray Alcohol and/or Sanitizers

Spray alcohol and/or sanitizers are to be made available in entrances, corridors, conference areas, elevators, stairways and areas where employees pass through, as well as in the isolation area in the workplace. [Section IV(B)(1) and (2), DOLE-DTI Interim Guidelines]

4. Clean Water and Soap

Clean water and soap must be available in all washrooms and toilets in the workplace, as well as in the canteen, pantry or eating areas. [Section IV(B)(2), DOLE-DTI Interim Guidelines]

5. Surface Disinfectants

Surface disinfectants are to be provided in the workplace since employers are required to clean and disinfect, at least every two (2) hours, frequently handled surfaces or objects such as doorknobs and handles. [Section IV(B)(2), DOLE-DTI Interim Guidelines]

In addition, equipment and vehicles entering the building or work premises are likewise required to undergo a disinfection process. [Section IV(B)(1), DOLE-DTI Interim Guidelines]

6. Isolation Area

Employers must provide for or identify Isolation Areas in the workplace where employees or individuals who are exhibiting symptoms of COVID-19 may be directed to stay in while being processed for the next step. [Section IV(B)(1), DOLE-DTI Interim Guidelines]

7. COVID-19 Hotline and Call Center

The Hotline and Call Center are to be provided so that employees will have a mechanism in the workplace to contact/report to if they are symptomatic/exhibiting symptoms of COVID-19, and to likewise receive daily monitoring updates of the employee’s condition. (Section V, DOLE-DTI Interim Guidelines)

8. Designated Safety Officer for COVID-19

The designated Safety Officer for COVID-19 shall be in charge of monitoring the implementation and compliance of COVID-19 prevention and control measures, such as physical distancing, wearing of face masks, regular disinfection, thermal scanning, and accomplishing the daily health forms, among others. (Section V, DOLE-DTI Interim Guidelines)

The Safety Officer or Clinic Staff assigned to assess the physical status of the employees shall be provided with medical grade PPEs by the employer, which shall include but not be limited to face masks, face shields, and gloves. [Section IV(B)(1), DOLE-DTI Interim Guidelines]

9. Tissues

Employers may provide tissues within easy reach of employees at all workstations and communal spaces. (Annex A, DOH Administrative Order No. 2020-0015)

10. Disinfectant Foot Baths

Disinfectant foot baths at the entrance may be provided, if practicable.

11. Roving Officers

Aside from the Safety Officers, the employer may include Roving Officers to ensure compliance with physical distancing and observance of minimum health protocols in the workplace. [Section IV(B)(1) and (C)(8), DOLE-DTI Interim Guidelines]

12. COVID-19 Tests

Employers may provide the testing of employees for COVID-19, at the expense of the employer. (Section VII, DOLE-DTI Interim Guidelines)

13. Shuttle Services and/or Decent Accommodations

Employers may likewise provide, where feasible, shuttle services and/or decent accommodations near the workplace for purposes of lessening travel and people movement. (Section V, DOLE-DTI Interim Guidelines)

Based on our interpretation, Items 1 to 8 are mandatory while Items 9 to 13 are optional.

Workplace Safety And Health Standards – Prior To Resumption Of Work

Q: What steps, in terms of training and information dissemination, must the employer take prior to resumption of work?

A: As an effort to provide information and understanding on the Guidelines, the Employers Confederation of the Philippines (“ECOP”) conducted a Webinar on 8 May 2020 entitled “DOLE and DTI Interim Guidelines on Workplace Prevention and Control of COVID-19”.

In said Webinar, DOLE Assistant Secretary, Ma. Teresita S. Cucueco, M.D., CESO III, said that employers must provide a mandatory eight (8)-hour Occupational Safety and Health (“OSH”) training to their employees before resumption of operations, pursuant to Section 16(b) of the OSH Law.

Q: How may the employer conduct the mandatory eight (8)-hour OSH training?

A: It may be conducted online, and on a staggered basis. For example, the employers may conduct four (4) online Webinars with their employees – two (2) hours each session – prior to resumption of operations.

Q: Are there any official guidelines as to what the OSH training should comprise of?

A: As of the moment, there are no official guidelines yet from the OSH. However, employers may conduct the training by informing the employees of the preventive measures set forth in the DTI-DOLE Interim Guidelines.

The employers may schedule an online Webinar, informing the employees of the following, among others:

1. Frequent hand washing;
2. Proper respiratory etiquette;
3. Coughing and sneezing into tissue or into shift sleeve if tissue is not available;
4. Disposing used tissues properly; and
5. Disinfection of hands immediately through proper washing with soap and water or alcohol-based sanitizer immediately after a cough or sneeze, among others.

Q: Are employers required to implement policies for the prevention and control of COVID-19?

A: Yes. Employers are expected to provide the necessary Company policies for the prevention and control of COVID-19, in consultation with workers. Advocacy and programs should be taken from DOH, the World Health Organization, and reliable sources of information on COVID-19. (Section V, DOLE-DTI Interim Guidelines)

Otherwise, the employers run the risk of workplace contamination or its workers being infected with the disease thereby affecting operations. The Guidelines are in place to prevent and control the spread of COVID-19.

Based on this, we recommend that employers may do any or all of the following:

1. Revise the existing Company rules and regulation to incorporate the safety measures and health protocols to be observed inside the workplace given the COVID-19 pandemic;
2. Require their employees to attend Webinars on COVID-19 Prevention and Mitigation to help them stay informed; and
3. Proliferation of infographics based on issuances of government agencies and reliable sources, which can be sent via email/Viber/Whatsapp/Facebook Messenger or printed and posted in conspicuous areas in the workplace area.

For Acubelaw’s retainer clients, you shall be provided with proposed or sample draft policies.

We also recommend employers to include in their written policies the directive to require their employees to temporarily refrain from reporting to work if the employee is experiencing any of the COVID-19 symptoms, as well as the duty to inform the employer if the employee is experiencing COVID-19 symptoms, so that the risk of transmission is reduced.

Workplace Safety And Health Standards – Prior To Entry Into The Workplace

Q: In order to comply with the standards on Reducing the Transmission of COVID-19, what safety precautions or procedures must the employer impose prior to entry into the workplace?

A: Prior to entering buildings and/or workplaces, the following shall be strictly observed by both employer and employees, as well as all visitors to the workplace:

1. Wearing of face masks at all times to be removed only when drinking or eating in the workplace;
2. Accomplishment/Filling up of Daily Health Symptoms (“DHS”) Questionnaire for submission to the guard or designated safety officer prior to entering the building and/or workplace;
3. Submission to temperature checks which shall be recorded in the DHS Questionnaire; and
4. Equipment or vehicles entering the building or work premises are to be subjected to a disinfection process. (Section IV[B], DOLE-DTI Interim Guidelines) Disinfecting of vehicles may be done by spraying disinfecting solutions before entering the parking area of the building. Once the passenger alights, he shall go through the required standard safety protocols implemented by the employer (i.e. submission to temperature check and accomplishment of DHS) prior to entering the workplace.

If there will be a long line outside the workplace for temperature checks or whatever reason, roving officers should instill physical distancing of one (1) meter between individuals. Roving officers referred to may be the security guards of the building, or separately engaged building officers who are mandated to monitor compliance with the policies.

Based on our interpretation, the above measures are mandatory.

Q: What can the employer do if the employee or any other visitor refuses to undergo the abovementioned procedure prior to the entry to the workplace?

A: Refusal on the part of the employee to accomplish said questionnaires may be deemed as a violation of the Company policies, once the procedures are included in the Company’s Code of Conduct. Thus, the same may also be used as a basis for disciplinary action against the non-compliant employee. Further, the employee may be refused entry into the workplace until and unless the employee complies with the safety measures mentioned above.

In relation to this, visitors who likewise refuse to undergo the above procedures may be refused entry into the workplace. We recommend that signages be posted in conspicuous areas at the entrance to the workplace regarding the procedures above.

Q: In relation to thermal scanning prior to entry, what is the procedure if the temperature of the employee is greater than 37.5°C?

A: Prior to entry into the workplace, if the temperature of the employee is greater than 37.5°C, the procedure should be as follows:

1. The employee must be asked to rest for five (5) minutes;
2. The employee’s temperature must be checked again;
3. If after resting, his/her temperature remains greater than 37.5°C, the employee must be directed to go to a designated isolated area and should not be allowed to enter the premises while being assessed by clinic staff or the safety officer on whether the fever is COVID-19 related or not (Section IV[B], DOLE-DTI Interim Guidelines);
4. If upon assessment, the fever appears not to be COVID-19 related (i.e. urinary tract infection, wound infection, or any disease not related to lungs or the respiratory tract), the employee must be directed to be prudent and limit the transmission by going home to properly manage the fever, among others (Section IV[B], DOLE-DTI Interim Guidelines); and
5. Note that a different procedure shall be applicable, which will be discussed in the next section, if the person having a fever or any other symptom is one suspected of having COVID-19.

Based on our interpretation, the requirements under this section are mandatory.

Q: Can the isolation or directive to go home referred to in the preceding discussion be considered as constructive dismissal?

A: No, since the Guidelines expressly mandate that the employee with a fever must be isolated, not allowed to enter the workplace and instructed to go home. In doing so, the employer is simply complying with the government’s mandate and directive.

Q: Will the employee who was directed to go home receive any compensation for that day?

A: If the employee was not able to render any work, the “no work, no pay” rule will apply.

The age-old rule governing the relation between labor and capital or management and employee is that a “fair day’s wage for a fair day’s labor.” If there is no work performed by the employee there can be no wage or pay, unless the employee was: (i) willing and ready to work but was illegally locked out, (ii) dismissed or (iii) suspended. (AKELCO v. Restiso, G.R. No. 121439, 25 January 2000)

In this case, none of the exceptions apply because the employee was legally and lawfully directed to go home pursuant to the Guidelines, in the interest of public safety and health. However, the employer may opt to apply any of the available or accrued leaves of the employee for such absence/s.

Q: If management of symptoms last for more than a day, how will the employee be compensated for the days that he was absent?

A: For employees exhibiting symptoms who are requested by the employers to stay home or are served quarantine orders, the following arrangements may be considered during the period of absence:

1. The employee’s absence may be charged to their remaining/available leave credits, if there are any.
2. If the leave credits have been used up, then the absences may be treated already as leaves without pay. However, DOLE encourages employers to exercise flexibility and compassion in granting additional leave with pay.
3. By mutual agreement, employers and workers could also agree on other arrangements for the worker’s leave of absence due to COVID-19-related reasons. (Section III, DOLE Labor Advisory No. 4 series of 2020)
4. If the requirements are present and applicable, employee may likewise secure assistance or avail of benefits under the Social Security System (“SSS”) or Employee Compensation Program from the Employee Compensation Commission (“ECC”).

Based on the foregoing, employers will have to use the employees’ remaining leave credits, and are not required to pay their employees once the same are utilized.

Workplace Safety And Health Standards – Inside The Workplace

Q: In order to comply with the standards on Reducing the Transmission of COVID-19, what is the minimum distance that employers must impose between and among its employees?

A: Physical distancing requires that at all times in the workplace, and in whatever situation, employees are to maintain a one (1)-meter distance from each other, i.e. work areas/tables, eating, using the employer’s facilities, elevators, stairwells, among others.

Based on our interpretation, this requirement is mandatory.

Q: When are employers and employees required to wear face masks?

A: Employers must ensure that all employees properly wear their face masks at all times in the workplace. Face masks may only be removed when eating or drinking, but subject to the one (1)-meter physical distancing. (Section IV[B], DOLE-DTI Interim Guidelines)

For prudence, we recommend that face masks should not only be worn in the workplace but must likewise be worn by employees whenever work is being rendered either inside or outside the workplace.

Based on our interpretation, the requirements under this section are mandatory.

Q: Are employers required to assign or provide safety personnel or medical professionals at the workplace?

A: Yes. It is the duty of the employer to designate safety officers and/or medical professionals in the workplace to monitor COVID-19 prevention and control measures such as the following:

1. physical distancing;
2. wearing of masks;
3. regular disinfection;
4. compliance to thermal scanning; and
5. accomplishing the DHS.  (Section V, DOLE-DTI Interim Guidelines)

The requirement of Safety Officers or Medical Health Professionals in the workplace is mandated under Republic Act No. 11058 or the Occupational Safety and Health Standards Law, depending on the type of workplace and size of the working population.

The minimum classification and number of safety officers for all covered workplaces shall be as follows (Section 14, Department Order No. 198-18):

Based on our interpretation, the requirements under this section are mandatory.

Q: What are the required safety policies or measures to be taken and implemented by the employer to ensure the safety of its employees once they are already inside the workplace?

A: The employer shall ensure that the following are strictly observed:

1. Clean and disinfect, at least once every two (2) hours, all work areas and frequently handled objects such as doorknobs and handles;
2. Frequent and proper hand washing;
3. Remind and encourage employees to avoid touching their eyes, nose and mouth;
4. Provide alcohol/sanitizers in accessible areas in the workplace;
5. Maintain physical distancing, at all times and under any circumstance, of a minimum of one (1) meter radius space (side, back and front) between workers and individuals in the workplace, i.e. elevator, stairwell, canteen/pantry/dining areas;
6. Discourage eating in communal areas;
7. Discourage conversations, between employees with their masks off, during mealtimes;
8. Regularly clean and disinfect canteens and kitchens; [Section IV(C), DOLE-DTI Interim Guidelines] and
9. Minimize contact rates in the workplace.

Based on our interpretation, the following requirements are mandatory.

We recommend that employers have a written policy containing the abovementioned measures, among others, and have such policy distributed and disseminated to all employees. For Acubelaw retainer clients, you shall be provided with proposed draft policies.

Q: How can employers minimize contact rates in the workplace?

A: In order to minimize contact rates, employers are encouraged to implement the following:

1. Adopt and implement alternative work arrangements, such as working-hour shifts, work-from-home (“WFH”), where feasible, and on rotation basis;
2. Discourage prolonged face-to-face interactions in the workplace between employees and/or clients;
3. Utilize online system applications such as videoconferencing in order to assist clients remotely;
4. Rearrange office tables in order to observe and maintain the proper physical distancing; and
5. Videoconferencing shall be utilized for lengthy discussions among workers. [Section IV(C), DOLE-DTI Interim Guidelines]

Based on our interpretation, the recommendations under this section are optional.

Q: What is the procedure if the employee inside the workplace is suspected of having COVID-19?

A: If the employee is suspected of having COVID-19, the following steps must be undertaken:

1. The employee shall immediately proceed to the isolation area designated in the workplace and directed to never remove his/her mask;
2. Clinic personnel shall attend to and assess the health situation of the employee;
3. If upon assessment that there is a need to do so, the employee should be transported to the nearest hospital;
4. Performance of contact tracing insofar as determining who are the other employees that were present in the work area with the employee suspected of having COVD-19, and once identified, directing these employees to go home and undergo a fourteen (14)-day quarantine;
5. Clinic personnel shall properly instruct and advise the employees going under quarantine on how to monitor and manage any symptoms; and
6. Decontamination of workplace. [Section IV(D), DOLE-DTI Interim Guidelines]

Clinic personnel attending to the employee should be provided with the appropriate PPEs such as face mask, face shield, goggles and gloves. Further, the employer should also already have in place protocols for the transport of the suspected COVID-19 employee to the hospital and PCR testing, including the provision for ambulances. [Section IV(D)(1), DOLE-DTI Interim Guidelines]

For the purpose of the fourteen (14)-day quarantine, DOLE clarified that the phrase “workers present in the work area” means those workers who have had contact with the COVID-19 suspect. Employers are asked to exercise their discretion, carefully investigating and tracing who had contact with the COVID-19 suspect.

Based on our interpretation, the requirements under this section are mandatory.

Q: What is the medical/official definition of someone suspected of having COVID-19?

A: Under DOH Administrative Order No. 2020-0013, the following may be considered as a “suspect case” of COVID-19:

1. A person with severe acute respiratory illness – fever of 38°C or higher, cough or sore throat, shortness of breath, and may even include severe pneumonia – whose cause is undetermined prior to testing for the coronavirus;
2. A person with influenza-like illness – fever of 38°C or higher, and cough or sore throat – and who lives in or has traveled to an area that reported local transmission of the coronavirus during the fourteen (14) days prior to the onset of symptoms;
3. A person with influenza-like illness and has had contact with a confirmed or probable case (see definition of “probable case”) of COVID-19 in the two (2) days prior to the onset of that confirmed/probable case’s illness or before that confirmed/probable case showed negative on repeat testing; and
4. A person with fever or cough or shortness of breath or other respiratory symptoms and is one of the following: 60 years old or older; with a comorbidity or pre-existing illness; in high-risk pregnancy; a health worker.

Q: When will the other employees under quarantine be allowed to report for work?

A: Those undergoing fourteen (14)-day quarantine referred to in the above questions shall be allowed to report back to work once the employee suspected of having COVID-19 has tested negative for the disease; [Section IV(D)(1), DOLE-DTI Interim Guidelines] or the employees themselves complete the quarantine period without exhibiting any symptoms.

Q: What is the recommended process on decontamination of the workplace?

A: The workplace shall be decontaminated as follows:

1. The workplace shall be decontaminated with appropriate disinfectant (e.g. chlorine bleaching solution and 1:100 phenol-based disinfectant); and
2. After decontamination of the work area, work can resume after twenty-four (24) hours. [Section IV(D), DOLE-DTI Interim Guidelines]

Q: Given above, does this mean that work inside the office is immediately stopped? Are workers required to leave the contaminated area/s?

A:  The employer must first identify which specific areas the COVID-19 suspect went/stayed when he was inside the workplace, and whom he had contact with. Once identified, only the specific areas will be decontaminated.

If work is still ongoing, only those who had contact with the COVID-19 suspect will be asked to leave the workplace and undergo a fourteen (14)-day quarantine. Workers who did not have any contact with the COVID-19 suspect may return to work after twenty-four (24) hours from decontamination.

Q: How do we determine who had contact with the COVID-19 suspect?

A: A ‘contact’ is a person who had any one of the following exposures during the two (2) days before and the fourteen (14) days after the onset of symptoms of a probable or confirmed case:

1. Face-to-face contact with a probable or confirmed case within one (1) meter and for more than fifteen (15) minutes;
2. Direct physical contact with probable or confirmed case;
3. Direct care for a patient with probable or confirmed COVID-19 without using proper personal protective equipment; or
4. Other situations as indicated by local risk assessments. (Global Surveillance for COVID-19 Caused by Human Infection with COVID-19 Virus – Interim Guidance, Word Health Organization)

Q: Once the COVID-19 suspect case is transported to the hospital, is the employer required to subject him to RT-PCR testing?

A: No, employer is not required to subject the employee to RT-PCR Testing. Once in the hospital, the employee must comply with hospital protocol.

Q: Can the employer require the employee to undergo RT-PCR testing before returning to work?

A: Yes, employer may require the employee to undergo RT-PCR testing, as a matter of prudence, before the employee is allowed to return to the workplace, provided that it is the employer who shoulders the expenses for the testing.

The employer may opt to subject the employee to RT-PCR testing because once he tests negative, he can already resume work, along with those employees who has had contact with him. Otherwise, without testing, the COVID-19 suspect must first recover and shall then start the fourteen (14)-day quarantine. In addition, the employees who has had contact with the employee must likewise undergo and complete the fourteen (14)-day quarantine without showing any symptoms.

Thereafter, the employees shall be given advice and instructions once they develop any health complaints or symptoms. (Section VII, DOLE-DTI Interim Guidelines)

Q: Who will shoulder the cost of the RT-PCR testing?

A: If testing is required or imposed as a requirement before returning to work by the employer, the procurement and cost of the testing kit shall be borne by the employer.

Q: What are the consequences if the employer does not comply with the mandatory requirements provided in the Guidelines?

A: Employers who fail or refuse to observe the safety and health standards mandated in the Guidelines may be held liable under Republic Act No. 11058 or the Occupational Safety and Health Standards Law (“OSHS Law”). The OSHS Law may impose upon the non-compliant employer, among others, a fine not exceeding Php100,000.00 per day until the violation is corrected, or be compelled to comply through the issuance of a compliance order by the Secretary of the Department of Labor and Employment.

In addition, employers who fail to comply expose themselves to liability in terms of the employees’ health issues and expenses.

Q: What are the responsibilities of the employees upon resuming work and while in the workplace?

A: The employees are expected to do the following:

1. Comply with all safety measures in place for the prevention and control of COVID-19, such as frequent hand washing, wearing masks, observing physical distancing at all times, and complete and truthful disclosure of relevant information, among others;
2. Observe proper respiratory etiquette;
3. Coughing and sneezing into tissue or into shirt sleeve, if tissue is unavailable;
4. Proper disposal of used tissues; and
5. Disinfecting hands immediately through proper hand washing with soap and water or alcohol-based sanitizer immediately after a cough or sneeze. [Section V(B), DOLE-DTI Interim Guidelines]

Q: What are the consequences if the employee does not comply with the mandatory requirements provided in the Guidelines?

A: Provided that the requirements discussed in this Primer are contained in the employer’s written policy on COVID-19 or included in the Company Code of Conduct, employees who fail to comply may be subjected to the appropriate disciplinary action by the employer.

Hence, we recommend that employers prepare and draft a supplemental policy on COVID-19 or revise/amend their Code of Conduct to clearly lay down all the requirements and procedures discussed in this Primer, and expressly indicate that non-compliance with any of the provisions, including any misrepresentation made by the employees in relation to the information provided to the employers, shall be subject to strict and grave sanctions.

Further, misrepresentation of the status of their health in the DHS Questionnaire is a violation of Republic Act No. 11332 or the “Law on Reporting of Communicable Diseases” for non-cooperation in the reporting of notifiable diseases.

Q: Are employers required to test employees for COVID-19?

A: No. The Guidelines merely state that employers may have the employees tested. (Section VII, DOLE-DTI Interim Guidelines) Absent any other subsequent issuance by the government, testing is still optional on the part of the employer.

The Guidelines take cognizance of the enormous costs that the employer may shell out if this provision is mandated upon them. However, if the employer requires employees to be tested, the costs of the test shall be borne by the employer.

Furthermore, please note that under the Guidelines, employee testing may be advisable if an employee suspected of having COVID-19 is identified and the resulting fourteen (14)-day quarantine period required of his/her co-employees unduly hampers the employer’s operations. This is because the co-employees under quarantine may only be allowed to report to work prior to the lapse of the quarantine period if the employee suspected of having COVID-19 has a negative result.

Q: Is the provision of shuttle services and decent accommodations to employees mandatory?

A: The Guidelines specifically qualify the provision of shuttle services and accommodations with the phrase “whenever feasible,” meaning that those employers who can afford to do so may opt to provide additional assistance to their employees. [Section V(A), DOLE-DTI Interim Guidelines]

However, during the ECQ and for some establishments as clearly identified by the government [i.e. Business Processing Outsourcing (“BPO”) companies and export establishments), the employer’s provision of shuttle services and decent accommodations were mandated by the government given that during ECQ, no public transportation was allowed and such establishments are not considered those providing essential services.

Employers are reminded that in areas under modified ECQ, public transportation is still very much limited. As such, should the employer be among those allowed to operate during modified ECQ, they are encouraged to take into consideration such limitation and provide shuttle services and/or decent accommodations for their employees who rely on public transport to get to work.

This may be the reason why, in an article published on 14 May 2020 at newsinfo.inquirer.net, Presidential Spokesperson, Atty. Harry Roque, stated that Malacañang advised employers and business owners not to resume operations if they cannot provide transportation or shuttle services to their employees, considering that public transportation remains prohibited even if several businesses / sectors were allowed to resume partial operations in areas under modified ECQ. (The article is found at this link: https://newsinfo.inquirer.net/1274925/fwd-palace-to-businesses-dont-resume-ops-if-shuttles-cannot-be-provided-to-employees#ixzz6MRZTBBGu.

Q: Are employers required to report to the authorities in case one of its employees tested positive for COVID-19?

A: Yes.  In case of COVID-19 positive patients, employers are mandated to accurately and immediately report notifiable diseases and health events to DOH and other appropriate agencies, so that the latter may conduct contact tracing if applicable. Emergency hotlines are 02-894-COVID (02-894-26843) and 1555.

Employers are further required to report any illness, disease, or injury in the workplace to DOLE. The monthly report, which shall be in the form of a Work Accident or Injury Form, shall be submitted to DOLE through its Regional Office, copy furnishing DOH. 

Please note that we have included cough and diarrhea as COVID-19 symptoms in the DHS Questionnaire, as these are among the symptoms enumerated by the DOH based on its issued COVID-19 FAQs.

We advise the Company to exercise prudence in divulging the personal information of its employees, taking into account their data privacy rights but with due regard to public safety. Employers may also check if there is a protocol in their respective LGUs in reporting of COVID-positive cases. 

Employer Accountabilities

Q: What is the employers’ liability or accountability if an employee contracts COVID-19 in the workplace?

A: In a press conference on 06 March 2020, the ECC,  through ECC Executive Director Stella Banawis, confirmed that COVID-19 can be considered a work-related illness if it was obtained by the employee in the performance of his or her employment and, thus, compensable if such conditions are met. Executive Director Balawis clarified that in the event an employee acquires the virus, it can be compensable under the Employees’ Compensation Program.

Q: How may an illness be considered compensable?

A: For an occupational disease and the resulting disability or death to be compensable, all of the following conditions must be satisfied:

1. The injury must be a result of an accident arising out of and in the course of employment; and
2. The sickness must be a result of an occupational disease listed under the Amended Rules on Employees’ Compensation (Section 1 Rule III, Amended Rules on Employees’ Compensation)

Q: The Amended Rules on Employees’ Compensation has a specific list of compensable illnesses and COVID-19 is not among the list. Why can it still be considered as compensable?

A: Citing the Increased Risk Theory, ECC Executive Director Banawis explained that COVID-19 is compensable if it was obtained by the employee in the performance of his or her employment.

Under the Increased Risk Theory, an injury, although not included in the list of occupational diseases under the ECC, is compensable if any of the following are present:

1. reasonable proof between the work of the deceased and the cause of his death; or
2. that the risk of contracting the disease was increased by the deceased’s working conditions. (Gau Sheng Phils, Inc. et.al. vs. Estrella Joaquin, G.R. No. 144665, 8 September 2004)

Thus, if an employee is afflicted with COVID-19, the employee may treat this as a work-related illness, subject to proof that the transmission happened in the workplace. Otherwise, if it is not proven that the transmission or the affliction of COVID-19 occurred in the workplace, liability will not attach to the employer.

Q: Are there any other benefits which may be claimed by an employee who is afflicted with COVID-19?

A: Yes. Employers may assist the employees in the availment of the SSS Sickness Benefit, subject to qualifications, which are:

1. He is unable to work due to sickness or injury and confined either in a hospital or at home for at least four (4) days;
2. He has paid at least three (3) months of contributions within the twelve (12)-month period immediately before the semester of sickness or injury;
3. He has used up all current company sick leaves with pay; and
4. He has notified the employer or the SSS, if unemployed, voluntary or self-employed member regarding his sickness or injury. (Rule 25, Implementing Rules and Regulation of Social Security Act of 2018)

Philhealth also implemented a Benefit Availment Package for inpatient care of probable and confirmed COVID-19 patients. All Filipinos are entitled, whether Philhealth registered or not. (Philhealth Circular No. 2020-0009)

Q: May the employee who becomes afflicted with COVID-19 claim damages from the employer on the ground of the latter’s negligence?

A: Yes, if negligence on the part of employer is proven. If an employee contracts COVID-19 in the performance of their work for the employer, the employer may be liable to the employee under the Civil Code if negligence is proven. The employee may attribute fault on the employer, assuming that the latter was negligent in strictly implementing health and safety protocols inside the workplace. (Article 1711, Civil Code)

As such, we recommend that the Company implement air-tight health protocols and policies upon resumption of work, so that the employee cannot later on invoke negligence on the part of the employer.

Other Faqs

Q: What does “imminent danger situation” mean?

A: These are places where workers are under evident risk of infection (Section VI, DOLE-DTI Interim Guidelines), such as:

1. Health-care institutions; and
2. Frontline services.

Q: What should workplaces with imminent danger situations do?

A: In places where workers are of evident risk of infection, the employer shall comply with DOH Department Memorandum No. 2020-0178 (“Interim Guidelines on Health Care Provider Networks during the COVID-19 Pandemic”) which was issued on 11 April 2020. Strict hygiene must be observed along with the use of PPEs. Employers shall ensure that PPEs are worn and disposed properly. (Section VI, DOLE-DTI Interim Guidelines)

Q: Do the employees have the right to refuse to return to work for fear that they might contract COVID-19?

A: Yes, if they have a valid safety concern. The workers have the right to refuse to work without threat or reprisal from the employer if, as determined by DOLE, an imminent danger situation exists in the workplace that may result in illness, injury, or death and corrective actions to eliminate the danger have not been undertaken by the employer. (Section 6, Occupational Safety and Health Standards Law)

The same is applicable whether during the enhanced community quarantine period or under the general community quarantine period, as long as DOLE sees that there is an imminent danger situation that exists in the workplace in relation to COVID-19 that may result to an illness, injury, or death.

Q: For how long can the worker refuse to work?

A: The employer cannot require the workers to return to work where there is a continuing imminent danger. However, the workers who are affected by the existence of the imminent danger situation may be assigned to other areas within the workplace provided that there is no impending issue with safety and health. (Section 6, Department Order No. 198-18)

Q: Can the employer impose disciplinary sanctions against the employee if the latter refuses to work because of COVID-19?

A: DOLE Secretary Silvestre Bello III, in a press conference on 17 March 2020, emphasized that an employer cannot impose disciplinary sanctions against the employee if the latter refuses to work because of the COVID-19 during the Enhanced Community Quarantine. However, employer may opt to apply available leaves to the employees’ absences or apply the “No Work, No Pay” rule, if there are no remaining leave credits left. 

Q: Who are the “Most at Risk Workers”?

A: “Most at Risk Workers” are the following:

1. Those who are older than 60 years old;
2. Those of any age with co-morbidities or pre-existing illness such as hypertension, diabetes, cancer, or with immunocompromised health status; or
3. Those with high risk pregnancy. (Section VIII, DOLE-DTI Interim Guidelines)

Q: Are those who are classified as “Most at Risk Workers” absolutely prohibited to work?

A: No. Although they are allowed to return to the workplace, due to their conditions, employers are highly encouraged to implement work-from-home arrangements for them without diminution in wages or benefits. (Section VIII, DOLE-DTI Interim Guidelines)

This is also in consonance with DOH Administrative Order No. 2020-0015, which mandates that the elderly, individuals with underlying conditions, and pregnant women may be asked not to physically report for work. Instead, employers must provide alternative working arrangement for them, for the duration of the COVID-19 pandemic.

Attached, for your reference and convenience, are the forms and relevant issuances regarding the foregoing discussion.

Additional Guidelines For Businesses Engaged In Construction Services

Q: Aside from the Guidelines, are there any other guidelines to be observed in the resumption of work specific to businesses engaged in construction services?

A: Yes. On 14 May 2020, the Department of Human Settlements and Urban Development (“DHSUD”) issued Department Order No. 2020-005, series of 2020, entitled “Guidelines for the Commencement or Resumption of Real Estate Business, Development and Construction Operations and Activities Covered by the Department of Human Settlements and Urban Development during the COVID-19 State of Public Health Emergency” (“Guidelines for Construction”).

Q: Who are covered by the Guidelines for Construction?

A: The Guidelines for Construction covers all developers and other entities engaged in the real estate development, construction, and/or related businesses covered by a Certificate of Registration and Licenses to Sell issued by the DHSUD (“Covered Entities”), who seek to commence, resume, or continue Covered Operations/Activities  in their offices and/or project sites in areas where they are allowed to fully, partially, or conditionally operate during the Community Quarantine.

Entities with pending or future applications for Registration Certificates/License to Sell with DHSUD are also covered once such certificates/licenses are granted/issued. (Section 2, DHSUD Department Order No. 2020-005, Series of 2020).

Q: What are Covered Operations/Activities?

A: Covered Operations/Activities refer to real estate development, construction, and/or related businesses covered by Certificates of Registration and Licenses to Sell issued by the DHSUD (Section 2, DHSUD Department Order No. 2020-005, Series of 2020).

Q: What are the mandatory minimum requirements to be observed by Covered Operations?

A: Covered Entities shall ensure the following minimum conditions/requirements are accomplished, provided, or complied with upon resumption to work:

1. The Company or contractor are to perform the following:

• At the expense of the Company/Contractor, require prior testing for COVID-19 (using rapid Testing Kits, at the least) or impose a five (5)-day quarantine for all employees, personnel, staff, and workers (regardless of their status or nature of employment/engagement) who are required, allowed, or permitted to report for any on-site work in their office or development/construction sites (“Workers”); and
• Retest or impose a new five (5)-day quarantine for those workers who leave for a period of time, the on-site or near-site quarters provided by the Concerned Entities, before they are allowed to resume work;

2. Provide safe and hygienic on-site quarters or near-site quarters for workers;
3. Provide adequate assistance package for workers who contract COVID-19 in the course of their employment/engagement/work with the Covered Entities, from the time of the commencement, resumption, or continuation of their Covered Operations/Activities, including the continued payment of their salaries/wages and benefits for the entire duration of their illness/treatment;
4. Provide group health or self-insurance coverage for all workers, with illness, death, and other assistance/benefits for all COVID-19 related risks; and
5. Impose mandatory wearing of face masks, temperature scanning, periodic sanitation/disinfection of worksites/premises (including quarters) and observance of social/physical distancing at all times (Section 3, DHSUD Department Order No. 2020-005, Series of 2020).

The requirements under this section are mandatory.

Q: What are the reportorial requirements prior to the resumption or commencement of operations?

A: Prior to resumption or commencement of any Covered Operations/Activities, the Covered Entities must:

• Formally inform the concerned Regional Office of their intention to commence, resume, continue operations/activities and the propose date/s thereof, and coordinate with the Regional Office thereon. The letter must be submitted to the Regional Office where the subject office or development/construction project, the operations/activities of which they seek to commence, resume, or continue are located. For retained clients of Acubelaw, we shall provide you with the necessary templates for the foregoing;
• Together with the formal notification, submit a Sworn Certification and Undertaking which shall include affirmation of their specific compliance with the mandatory requirements in DHSUD Department Order No. 2020-005 signed by them through their concerned office manager or duly-authorized representative and/or designated project manager or site engineer in the construction site. The Sworn Certification and Undertaking Form must be accomplished for each office/branch and/or project development/construction site wherein they seek to commence, resume, or continue operations/activities. [Section 4(A), DHSUD Department Order No. 2020-005, Series of 2020].

Q: Can the Covered Entities resume or commence its activities in case of inaction by the Regional Office?

A: Yes. If the Regional Office fails to act and/or decide within twenty-four (24) hours from receipt of the formal notification and duly signed Sworn Certification and Undertaking, the Covered Entity concerned may proceed with its Covered Operations/Activities in the project site and/or office subject of the notification.

In such case, the Regional Office shall ensure strict compliance with the guidelines by conducting a post-inspection of the project site/office. (Section 4[B], DHSUD Department Order No. 2020-005, Series of 2020)

Q: How can the Regional Office ensure continuous compliance with the Guidelines for Construction?

A: The Covered Entities must submit periodic compliance reports and updates to the Regional Office, which shall monitor their actual compliance through regular inspection of their project sites/offices. (Section 4[B], DHSUD Department Order No. 2020-005, Series of 2020)

Q: Are those who have not ceased their operations during the community quarantine still required to comply with the notification requirements?

A: Yes. All Covered Entities who have not stopped or have already resumed operations/activities prior to the Department Order shall notify the Regional Office of such continued operation/resumption and comply with the notice/coordination and Sworn Certification  and Undertaking Requirements within a period of five (5) working days from the issuance of DHSUD Department Order No. 2020-005, Series of 2020 (Section 4[C], DHSUD Department Order No. 2020-005, Series of 2020).

Q: Are there any penalties for non-compliance with DHSUD Department Order No. 2020-005, Series of 2020?

A: Yes. Non-compliance with the prior notification and certification procedure or violation of any mandatory requirement or provision of the Department Order shall warrant the imposition of a Cease and Desist Order by the Regional Office, against the Covered Entities concerned, without prejudice to the imposition of other/further sanctions, as may be appropriate (Section 7, DHSUD Department Order No. 2020-005, Series of 2020)

Summary & Conclusion

Below is a summary of the safety measures prescribed under the Guidelines:

You may download the pdf of the following references and files from the links below:

1. Acubelaw Primer on Workplace Prevention and Control of Covid-19
2. DOLE & DTI Guidelines on Workplace Prevention and Control of Covid-19
3. DOH AO 2020-15 Guidelines of Risk Based Public Health Standards for Covid-19 Mitigation
4. BWC-DOLE Illness Report Form (WAIR)
5. Daily Health Survey Form
6. Compliance Checklist

*The foregoing are based mostly on issuances as of 6:30 P.M. of 15 May 2020. The situation is currently fluid and the foregoing may change from time to time, or the interpretation may vary and change as the days develop. The foregoing memorandum/updates have been prepared for general information purposes only. The information presented should not be construed to create or constitute an attorney-client relationship, not intended as a solicitation, is not intended to convey or constitute legal advice, and is not a substitute for obtaining legal advice from a qualified attorney. You should not act upon any such information without first seeking qualified professional counsel on your specific matter. We shall update you from time to time. Stay safe, everyone.