A lot of businesses AND employees have been lambasting the national government for not offering enough support. Given how harshly they complain, I wonder if they actually know what rights do businesses have as an Employer. Likewise, I don’t think many employees understand the precarious situation is everyone is in, and the “New Normal” is a labor landscape that’s more challenging from before.

This is the reason why I wrote this post — It may be a reiteration of my previous post. However, it will help everyone understand what’s going on, and where everybody’s rights are. This would minimize fear mongering in social media, and give everyone the correct perspective on how businesses will operate post-ECQ.

Here are Twelve (12) Things Employees should be aware of when Working in an Post-ECQ World:

1. Employers are not liable for employees when they contract COVID-19 following certain conditions
2. Employers are not mandated to provide shuttle buses to employees
   Update: DOLE Secretary Bello stated on May 23 that if companies cannot provide employees with shuttle service, employer cannot force them to report to work.
3. Employers are not mandated to do mass testing for their employees
4. Employers do not need to spend a lot of money to test their staff if they choose to do so.
5. Employers can now operate provided they follow DTI and DOLE Health Guidelines in the Prevention of COVID-19
6. Employers WILL send you home for 14 days if one of the employees present during the day is suspected to be positive for COVID-19
7. Employers do not need to pay their staff if the staff does not work
8. Employers can put their staff on Flexible-Work Arrangements (FWA) following informing DOLE seven (7) days prior
9. Employers can legally put their staff on floating status for a limited number of months provided certain conditions are met
10. Employers CAN Legally Negotiate for Lower Wages and Wage-Related Benefits with Employees for a Limited Time
11. Employers can legally terminate and lay-Off a staff for Just and Authorized Causes during ECQ, MECQ and GCQ
12. Employers can fully close their businesses without their employees’ consent

Here are 12 Things Businesses Need to Know to Operate in a Post-ECQ Environment

1.  Employers are NOT LIABLE for their employees contracting COVID-19, PROVIDED that they have paid for their staff’s SSS and PhilHealth.

Source: Labor Advisory No. 4, Series of 2020 – Guidelines on 2019 Novela Coronavirus 2019 Prevention and Control at the Workplace

So better make sure all your staff have SSS and PhilHealth.

What type of Health Coverage do Employees Get When they contract COVID-19 and they have SSS and Philhealth? 

Here you go — anything beyond that is NOT YET the employer’s problem. Meaning, no advisory that says otherwise.

2. Employers are NOT mandated to provide Shuttle Buses for its Employees

Source: DTI and DOLE Interim Guidelines on Workplace Prevention and Control of COVID-19

Source: Inquirer, Private Firms Not Obliged to Provide Shuttle Services to Employees

UPDATE, thanks to Jeph Jacildo — Update: DOLE Secretary Bello stated on May 23 that if companies cannot provide employees with shuttle service, employer cannot force them to report to work. Yun lang, no work no pay pa din if cannot report to work.

“Alam naman ng mga employer na kung gusto nila pumasok ka, alam naman nila na wala kang sasakyan o ‘di kaya ‘di ka makarating sa iyong workplace,” DOLE chief Silvestre Bello III said during the Laging Handa online press briefing Saturday.

(Employers know that if they want you to go to work, they know that you don’t have a car or you can’t go to your workplace.)

“So kung gusto nila pumasok ka, kailangan mag-provide sila ng shuttle facility, (So if they want you to go to work, they should provide the shuttle facility),” he added.

If employers cannot provide shuttle services for its workers, Bello said they should not force employees to go to work.

3. Employers are NOT mandated to do any type of COVID-19 Testing to its Employees unless the Staff is symptomatic.

There’s also the rumor that testing is mandated and Employers has to cover all testing . This news is 100% FALSE. While it is true that IF employers want to test their staff, they have to pay for the tests, COVID-19 testing is NOT mandated by the government.

Some other addendum re: this. First, if you will test, testing must be done at Employer’s Expense:

Two, there are some LGUs that require testing but this is not nationwide. Here are the LGUs who are requiring testing:

• San Juan at employer’s expense
• Paranaque at employer’s expense
• Caloocan at employer’s expense
• Marikina but at city’s expense (Yay!)

San Juan

San Juan for example made it mandatory for employers to test their employees.

For San Juan, employers have to get the MECQ Health and Travel Certificate for each employee from the City Health Office. If you got yourself tested before May 17, you have to redo the test again! My friend will call tomorrow to see what are the requirements needed.

Annnnddddd…. two days later, the San Juan government retracts (May 18 at 5pm):

This is for Paranaque — so far, the city is clear they will mandate testing:

Caloocan

What about Quezon City?

Strongly advised is key. Este, not mandatory yet as of May 17, 2pm:

So if your LGU says you need to test, you need to test. Check with your LGU on what their ruling will be.

4. Employers do not need to spend a lot of money to test their staff if they choose to do so.

If Employer wants to do COVID-19 Testing for its Employees, the Cost is CHEAPER than Expected at a Minimum of Php 400 per FDA Approved Kit.

DOLE says that IF employers decided to test, they have to pay for the testing. The decision lies in the employer to do it or not. Given this snippet of information, all employers started to complain and say that testing is expensive and they can’t test all their workers.  This is because at that time, a lot of clinics are charging between Php 1,000 to Php 1,900 per person to for a rapid test kit. This is widely marked up given the supply and demand. It comes to the point that even lawmakers like Drilon is complaining on why the suppliers are charging so high.

Thanks to Project Ark, a private sector initiative that connects businesses and charities to the direct source of rapid test kits, thus ensuring that they buy the FDA approved kits at the cheapest cost possible, allowing everyone to test their employees at a reasonable price. Please note that they are NOT the supplier, but rather the coordinator that connects businesses to the direct suppliers. 

I bought our rapid test kit, Innovita, from one rapid test kit providers, at Php 450.00 a piece, box of 40 pcs minimum:  

Numbers here on the lower right side:

Who will Test? 

Employers have the option to outsource the hiring of the med tech team. According to DOH:

Companies who initiate rapid antibody testing at their own cost do not need to contract the services of a laboratory. They may conduct testing in accordance with DOH protocols  for administering and interpreting the test, use of proper PPE and disposal of healthcare wastes, and reporting of results through the CIF.

I received a quotation for a team of licensed med tech professionals who can conduct the test in our office for a fee of ₱8700. That’s for:

2 x Licensed Medical Technician
1 x Licensed Nurse

Each cost ₱2900 (₱2000 basic pay, ₱400 hazard fee and ₱500 transport). If you don’t have a company physician and want to hire a licensed doctor to sign certification, that’s ₱5,300 for the doctor. Total of ₱14,000. PPE/lab gown and surgical mask is company expense.

The two med techs will be in charge of extraction. Nurse will tally results sheet which is part of the certification given. The team has to be at least 3 to prevent mix ups. For certification, a company physician or licensed doctor need to sign the results.

Per patient, the entire process may take 20 minutes —- 5 mins to test, 10-15 minutes for results to come out before results to read. The team can test sunod sunod. That’s why people need a dedicated person in the results area to ensure there’s no mix up of kits to read, which he will forward to the doctor.

DOING THE MATH

Rapid tests cost ₱1500-1900 in a clinic.

Assume lab test is ₱1500-1900 per pax, the break-even point of doing it onsite with med tech team present is 6-8 pax. Six if the clinic price is Php 1,900. Eight if the clinic price is Php 1,500. If with their licensed doctor, break-even is at 10-13 employees.

Assume ₱1500 test elsewhere, if for example, you have 40 pax, doing the tests onsite in your office with a team of med tech and licensed doctor will save you ₱28,000. If you have 100 people in a factory, savings will be ₱91,000.

If the LGU does not mandate testing in their affiliated clinic, this is the practical alternative for businesses who choose doing rapid tests over zero tests at all. Again, I know the risks. I’ve analyzed all the data. Just sharing so that people can make informed decisions vs. Just going for zero or the most expensive alternative there is.

5. Employers can now operate provided they follow the DTI and DOH Health Guidelines

Source: Labor Advisory No. 17, Series of 2020 – Guidelines on Employment Preservation Upon the Resumption of Business Operation

Here is the DTI and DOLE Interim Guideline Workplace Prevention and Control of COVID:

Everyone should read it, understand it, and follow it at all times. This will ensure that everybody in the office can be protected from COVID-19.

This means that so long as the company complies with the DTI and DOLE Interim Guideline Workplace Prevention and Control of COVID, workers cannot say that there is imminent danger in the workplace without any proof.

Hence, employees cannot use the excuse that “takot ako sa buhay ko,” to refuse to go to work without any repercussions. For them to use the excuse that their workplace is dangerous, DOLE has to first determine that the workplace is indeed dangerous, and issue a Work Stoppage Order to suspend operations.

Without the Work Stoppage Order from DOLE, employees must report if asked by their employees. If they went absent, employers have the right to issue warnings and sanctions to get them to come in.

6. Employers WILL send you home for 14 days if one of the employees present during the day is suspected to be positive for COVID-19

Specifically, here are the instructions:

When this happens, cooperate with the company and go home. If the suspected COVID-19 worker tested negative, only then will you be allowed to report back to work. This is why if you think you are sick, stay at home and don’t pahamak your co-workers.

7. Employers do NOT Need to Pay Staff for Days Not Worked

Source: Labor Advisory No. 4, Series of 2020 – Guidelines on 2019 Novela Coronavirus 2019 Prevention and Control at the Workplace

Source:Labor Advisory No. 1, Series of 2020 – Suspension of Work in the Private Sector by Reason of Natural or Man-Made Calamity

8. Employers CAN put Staff on Flexible Work Arrangements (FWA) provided that they inform DOLE Seven (7) Days Prior

Source: Labor Advisory No. 17, Series of 2020 – Guidelines on Employment Preservation Upon the Resumption of Business Operation

In fact, DOLE prefers that employers put their staff on FWA arrangements instead of terminating them completely.

Source: DOLE to Businesses: Don’t close, just scale down. Inquirer

Just a warning, FWA should not last more than six (6) months.  The Establishment Report on COVID-19 looks like this. Yes, it’s the same form we submitted to DOLE.

Download the Word Version ER-COVID19-Monitoring-Form HERE.

If you are going to do an FWA, please fill up the 1) Establishment Report on COVID-19 and 2) Report on the Adoption of Flexible Work Arrangements During Economic Difficulties and National Emergencies. You need to email this to your local DOLE office ASAP, and submit two hard copies to the closest DOLE Office which has jurisdiction over the workplace as soon after ECQ lifts.

9. Employers can put their staff on “Floating Status” under certain Conditions

Unfortunately YES for the below conditions:

Under Article 286 of the Labor Code it is provided as follows:

ART. 286. When employment not deemed terminated. — The bonafide suspension of the operation of a business or undertaking for a period not exceeding six months, or the fulfillment by the employee of a military or civic duty shall not terminate employment.

In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one month from the resumption of operations of his employer or from his relief from the military or civic duty. If there’s no work to be returned after max of 6 months floating status, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year.

SHOULD YOU GET PAID WHILE ON FLOATING STATUS?

Sad truth is the company has no obligation to pay you basic salary under the rule no work, no pay. Although there are companies who give basic pay to their employees who are on floating status, they are rare. If you’re in one, stay there. I had a friend who was earning while he was sitting at home waiting to be called and report back to work as soon as there’s an opening. Because he was placed on floating status.

WHAT HAPPENS WHEN 6 MONTHS HAVE LAPSED?

Your employer will pay you separation and everything due to you. Unless of course they’re able to find a new campaign for you. Provided that the campaign will accept you and that you’re a fit for the opening.

Now what about the DOLE Notice that says it should only be 3 months and not 6?

Martin Sanderson was kind enough to shed light (Updated July 2, 2020):

“Watch out in including Department Order 174 in this. The DO makes changes only to reducing the floating status from 6 to 3 months for employees of contractors and sub-contractors, NOT regular employees.

DO 174-17, RULES IMPLEMENTING ARTICLES 106 TO 109 OF THE LABOR CODE, AS AMENDED. Articles 106 to 109 only apply to Contractors or Subcontractors, not to regular employers.“

Thanks Martin for the clarification!

WARNING: Floating Status is TRICKY.

You do need to have the right reason to put a staff on floating status if you plan to do so for more than 3 months. Read the fine print to proceed:

Travel agency closed due to government orders regarding ECQ and GCQ — Legal for 6 months max.

Lack of contract awarded to the business for that team to do their work — Legal for 6 months max.

Mall closed due to fire — Legal to float for 6 months max.

I’m angry at you and company wants you to force resign so they place you on floating status for over 3 months — ILLEGAL.

This article by Charles Anderson, Suspension of Business Operations: Floating Status, Temporary Lay-off gives a well balanced view on the subject and is a gold mine of information. Please READ this article before floating a staff. Long but super interesting to read.

10. Employers CAN Legally Negotiate for Lower Wages and Wage-Related Benefits with Employees for a Limited Time

Provided that it’s voluntary in writing and with mutual agreement:

Source: Labor Advisory No. 17, Series of 2020 – Guidelines on Employment Preservation Upon the Resumption of Business Operation

Regardless of this forgiving policy, do not go under the minimum wage. And if you reduce, best to reduce only the additional benefits like telephone allowance, rice subsidy, bonuses and incentives, and other dagdag benefits. Personally, I would leave their basic wages untouched. Kasi people are worth their basic wages.

If they are not even worth their basic wage, then maybe you should not keep them anymore. Just make sure you pay them separation pay.

11. Employers CAN Legally Terminate and Lay-Off Staff for Just and Authorized Causes Even During ECQ, MECQ and GCQ. 

People misread the Labor Advisory by saying that they are protected from being fired during ECQ. So they can be an ass, do whatever they want, and still be protected by DOLE.

This is a very WRONG misconception — A company CAN and SHOULD terminate your employment for any Just and Authorized Causes as prescribed by the Labor Code so long as there’s really an offense and the company follows due process in firing you. Here are the difference between Just and Authorized Causes:

In Tagalog:

You need to know WHY you were terminated. Both Just and Authorized Causes are allowed during ECQ under the following conditions:

• Just Causes: There must be a valid offense, Twin notice rule and proper due process are followed.
• Authorized Causes: Company has reported to DOLE that they will cut people, 30 days notice, and payment of severance pay.  Severance pay as follows:

If you are terminated using the Just and Authorized Causes, wala kang laban sa DOLE.

For those who don’t come to work, they can be terminated following due process. I would just encourage companies to be lenient on attendance during MECQ due to zero public transportation. Kindly balance both heart and mind when making a decision to terminate a staff.

12. Businesses CAN Legally Close Even without the Consent of the Employees 

All the company has to do is to follow due process in closing the business. The law firm Nicolas & De Vega Law Office shares with us the process of fully closing a business:

a. Employees must be properly terminated to avoid issues on illegal dismissal.

All companies need to do is to INFORM the Notice of Closure and Termination to both the employee and DOLE at least 30 days before the intended date of termination. Note that informing the employees does not mean the employees consent to the closure. But if management decides to close, employees have no choice but to respect the decision so long as the company followed due process and pay the correct separation pay.

This is the reason why so many companies are permanently shutting down. I am especially sad to see some of the institutions I grew up with have started shutting down like the iconic Century Seafood Restaurant.

Source: Century Seafood Restaurant Closes Down, Esquire Magazine

Furthermore, if the closure is not due to business losses, the corresponding separation pay must be paid to the employees. This is the Termination Form you have to submit to DOLE:

b. Company must then send a Notice of Closure to BIR, SSS, Philhealth and Pag-ibig. 

             Failure to notify and/or secure clearances from these government agencies will result in the continued assessment of the company for its mandated contributions.  Hence, the BIR will still assess taxes based on the presumed income of the company.  Further, the SSS, Philhealth and Pag-Ibig will still consider the company as active and presume that the company is delinquent in its remittances.  Hence, the company might be surprised to still be assessed these contributions four years after its closure.

c. Inform other government agencies of your Notice of Closure if you are involved in the Philippine Export Zone Authority (PEZA), Board of Investments (BOI), etc.,

d. Close the business with the DTI if you are a sole proprietor or SEC if you’re a corporation.

Closing a business is a tedious process that takes an extra amount of money, and can last you around six months to a year. It is essential to go through all steps though. Please do not shortcut your closure as it will give you problems later on when you decide to open up another business.

In Summary 

Upon reading this blog post, a lot of employees might be dismayed on the bias of the Department of Labor and Employment (DOLE) and the national government towards businesses and large companies. “Lahat ng bagay, puro pro-Employer! Paano naman kaming mga employees?!”

To be honest, I’ve always found DOLE to be super pro-labor/employee. Even though their complaints don’t have any basis, DOLE still engages and entertains the employee grievances. When there’s a decision to be made, DOLE often times asks the companies to give in, and to settle with the employees para matapos na ang issue, even though it’s the employee that’s in the wrong. To say DOLE is pro-employer is very unfair. DOLE has always looked after the rights of the employees much to businesses’ chagrin. In fact, this is one of the reasons why foreign investors do not come into the Philippines. Kasi masyadong pro-labor ang Pilipinas.

So the fact that DOLE is loosening its hold shows their desperation for businesses to stay afloat and to stop laying off people. So many businesses have closed and laid off people over the last couple of weeks to the point that DOLE is concerned, and wants to stop the flow of unemployment.

“Some 5 to 10 million workers could lose their jobs due to the coronavirus pandemic and resulting lockdowns, Philippine Labor Secretary Silvestre Bello III said Thursday.

At least 2.6 million workers were displaced permanently or temporarily as of May, Bello said in a Senate hearing on the COVID-19 crisis that swept the country of a little over 100 million.

“Yung (the) 2.6 million, that is the actual number of workers either displaced because of temporary closure or because of the flexible work arrangement. Our estimate is that we may go as high as 5 million,” Bello said.

During a Senate hearing on Wednesday, Senator Ralph Recto asked if it is possible for unemployment in the country to reach 10 million, to which Bello replied, “I hate to say it, but it’s possible.”

All I can say is, the job market will be worse when we get back to work. Wherein employees used to be very demanding and could easily jump from one company to the next, many would find the post-ECQ era to be different. I’m part of several HR and Job Hunting sites, and all I can see are companies firing groups of people left and right. If you lost your job, it would be harder to find another as companies are no longer hiring in the same capacity as before. Wala na ngang mapaglagyan sa tao ngayon. Maghihire ka pa?

“But what about our families?” Employees ask. “I have a wife and kids to feed. Paano na sila if bumaba ang swedo ko?”

I know it sucks.

All I can say is, SOME MONEY is still better than ZERO MONEY. Yes, it sucks if your wages cut in half given a reduction of work days. But at the end of the day, it’s still better than having no job, and no income. Because when that happens, patay na talaga ang pamilya. Where will you get money? Utang na lang ba ng utang?

I’m sorry if you lost your job. I’m sorry if you think your life sucks. Everyone is in the same boat. You, me and everybody else.

So if you still have a job, treasure it.

If you haven’t been laid off yet, be thankful.

If your company asks you to make REASONABLE concessions (hindi yung abusado ha), be considerate.

Because at the end of the day, it’s not about me. It’s about we. And we all need to hold on with the post-ECQ business environment, which will be harder for most industries than before.

Good luck to us all.