Can employers fire employees infected with COVID-19?
WHAT MATTERS MOST - Atty. Josephus B. Jimenez (The Freeman) - March 18, 2020 - 12:00am

The answer is yes, of course, but firing is not the politically appropriate word. The proper term is to separate, not to dismiss. And with separation pay, of course. Firing is for the undesirable guilty employees. Separation is for those who are allowed to leave honorably.

Under Article 299, Book Six of the Labor Code (formerly Article 284), an employer may legally terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law, or is prejudicial to his health as well as to the health of his co-employees. The law hastens to add a proviso that the affected employee should be paid separation pay equal to his one-half month for every year of service. If he has been with the company for less than two years, the law says that the least that he should get is at least a total separation equal to a one-month pay.

There has been a Supreme Court decision (Capitol Wireless vs. Confesor) saying that in this country, one-half month is equal to 22.5 days, which is 15 days plus five days service incentive leave plus 2.5 days which is one-twelfth of the 13th month pay. Going back to COVID-19, there is no doubt that when an employee is tested positive, his continued employment would necessarily pose a grave and imminent danger to the health of his co-employees, to the employer, and to the customers and public in general. Of course, separating him is an option open to management. The employer may put him on six-month leave, with possibility of readmission once he is medically declared clean.

The irony is that a few years back, DOLE issued a department order prohibiting dismissal of employees infected with HIV-AIDs, as well as those suffering from tuberculosis and Hepatitis B. They are just to be given long-term vacation, just like those on drugs. The current administration, however, does not obligate employers to spend for the rehab of drug users. They can be dismissed for cause, and they should spend for their own rehabilitation. Once they are clean again, they can re-apply, but the company is not obliged to re-employ them. This COVID-19 thing is still without clear guidelines. But, it is my firm opinion that employers are authorized by law to separate them from service under the Labor Code.

I think that the Bureau of Working Conditions is currently drafting another Department Order to guide employers how to address labor standards and labor relations issues brought about by the current COVID-19 scare. Until and unless told otherwise by DOLE, employers can act under the general principle of management prerogatives. It is management's duty to protect the health of the owners, as well as the other employees, not to mention the customers. How can a hotel, an airline or a restaurant continue harboring a COVID-19-positive worker, and thus putting the health of all the rest at grave risk?

If I were an employer, I would exercise utmost diligence in making sure that my company and its people are not put in serious jeopardy by the presence of a COVID-19-positive employee. I am willing to be sued for illegal dismissal, I shall answer the charges. But never should I renege on my primordial duty to protect my company and my people. I will bite the bullet. I will drink the hemlock. I will face the firing squad. But I will save the majority, by sacrificing one unlucky guy.

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