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    Managing HR Through COVID-19

    A Practical Guide For Multinational Employers

    Prepared by Romulo Mabanta Buenaventura Sayoc & De Los Angeles

    As at April 11, 2020

     

    Overview

    This guide will help employers manage HR legal and practical issues arising from COVID-19.

    It covers:

    This publication has been coordinated by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available through the Mayer Brown COVID-19 Portal.

    It has been prepared by Romulo Mabanta Buenaventura Sayoc & De Los Angeles and is published with their kind permission. With thanks to:

    Romulo Mabanta Buenaventura Sayoc & De Los Angeles  |  Enriquito J. Mendoza  |  Enriquito.Mendoza@romulo.com  |  www.romulo.com

     

    Good Practice

    There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:

    1. Keep up-to-date with accurate information

    It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories and the World Health Organization (“WHO“) website, and check that the information they receive is factually correct.

    2. Know where your employees are and where they have been

    An employer cannot keep its employees out of harm’s way if it does not know where they are and where they have been. As outbreaks of COVID-19 occur in various parts of the world, keep track of which of your employees could be at risk.

    3. Communicate with your employees

    Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace.

    4. Provide a safe platform for employees to raise concerns

    Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting.

    There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues.

    5. If you can be flexible, then be flexible

    Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need more time off as school classes are suspended).

    This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.

    6. One size may not fit all

    While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law.

     

    Action Point Checklist

    In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.

    1.  Review

    • Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
    • Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
    • Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm. Even if the employment contract states otherwise, however, the Labor Advisory No. 09-20 does allow employers, after consultation with their employees, to institute a flexible work arrangement, especially during the quarantine period.
    • Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
    • Ensure contact details for all staff are up-to-date.
    • Undertake a risk analysis of high-risk groups of employees, and what steps can be taken to try and reduce risks for those groups. These groups may include:
      • those who travel frequently to countries where there is currently or may well in future be a risk of infection.
      • those with health issues, such as asthma, diabetes, cancer, or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
    • Review procedures in the office for preventing the spread of the virus, e.g., increased cleaning, availability of hand sanitizers and tissues etc.
    • Review planning for the possibility of large scale absenteeism. For example:
      • Identifying the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required?
      • Identifying employees with transferable skills so that these essential positions can always be temporarily filled.
      • Considering flexible work patterns, such as employees working from home.
      • Identifying those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).

    2.  Communicate

    • Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
    • What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
    • Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact? If there is no such committee, the employer may want to consider setting one up.
    • Communicate as a matter of urgency with the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
    • Ensure managers are aware of the relevant workplace policies.
    • Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus. What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as any official reporting process.
    • Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus. For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
    • Make clear that where staff are ill, they must not come to work regardless, i.e., “struggle through”.

    3.  Update

    • Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
    • Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
    • How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact-based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
    • Who will have the authority to determine changes to policy and issue any new communications to staff?

    4.  Travel

    • Log employee travel before it is booked and check against the latest travel protocols.
    • Ensure staff know that this applies to personal travel as well as business travel.
    • Encourage staff to tell you if close family members with whom they share a house are travelling to infected areas.
    • Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
    • Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.

     

    Country Overview

    As at April 11, 2020

    On March 16, 2020, the entire island of Luzon was placed by the Philippine President under “enhanced community quarantine” (“ECQ”) until midnight on April 30, 2020. Under the ECQ Memorandum issued by the Executive Secretary on the authority of the President, only private establishments providing basic necessities and such activities related to food and medicine production, i.e., public markets, supermarkets, groceries, convenience stores, hospitals, medical clinics, pharmacies and drug stores, food preparation and delivery services, water refilling stations, manufacturing and processing plants of basic food products and medicines, banks, money transfer services, power, energy, water and telecommunications supplies and facilities shall remain open. In all such open establishments, their respective managements shall ensure the adoption of a strict skeletal workforce to support operations, as well as all strict social distancing measures. Business Process Outsourcing establishments and export-oriented industries are also allowed to remain operational subject to the condition that strict social distancing measures are observed and their respective personnel are provided with appropriate temporary accommodation arrangements. Transit to and from the above establishments anywhere within the area covered by the ECQ is allowed. Media personnel are allowed to travel within the quarantine area subject to proper identification from the Presidential Communications Operations Office. Mass public transport facilities are suspended and land, air and sea travel are restricted.

    1. What are an employer’s main legal obligations?

    Apart from the specific positive actions mentioned above, the following obligations are imposed on employers in relation to the COVID-19 crisis:

    i. Under the Mandatory Reporting of Notifiable Diseases and Health Events of Public Health Concern Act (Republic Act No. 11332), employers are required to report any employee who may be afflicted with a notifiable disease (such as COVID-19) to the Department of Health (“DOH“). The chief executive officer, president, general manager, or such other officer in charge of the employer may be held criminally liable and penalized with a fine of Php20,000.00 to Php50,000.00 (about USD400.00 to USD1,000.00) and/or one to six months’ imprisonment for breach of such duty.

    ii. An employer who wishes to employ a flexible work arrangement, such as a work from home scheme, should file a report to the Department of Labor and Employment (“DOLE“), using the prescribed form attached to Labor Advisory No. 09-20.

    iii. Employers are required to undertake measures in order for its employees to avail of sickness benefits from the Social Security System and the Philippine Health Insurance Corporation during the COVID-19 crisis.

    iv. Employers should comply with the requirements of the Occupational Safety and Health Standards law (R.A. No. 11058) as well as its Implementing Rules and Regulations (DOLE Department Order No. 198-19) to ensure the general health and safety of its employees.

    2. Do I need to prepare for and have in place a workplace plan to deal with COVID-19?

    Yes. Since January 31, 2020, private sector employers have been instructed to observe the guidelines provided in Labor Advisory No. 04-20 to prepare for and address the COVID-19 outbreak.

    3. What should a workplace COVID-19 response plan cover?

    DOLE Labor Advisory No. 04-20 provides, among others, the following:

    i. Precautionary measures, such as informing workers about COVID-19, disinfecting work areas, avoiding/reducing exposure to animals, environments, and objects that may carry the virus, ensuring the proper preparation of food, emphasizing necessary individual actions to stay healthy, and monitoring workers’ health.

    ii. Institutionalization of screening programs for workplaces with imminent danger situations.

    iii. Measures that should be taken for a worker suspected of having been infected with COVID-19, such as providing the worker with a face mask, isolating the worker from other workers, referring the worker to a healthcare provider, reporting the worker to the DOH, ensuring the implementation of any measures that may be required by the DOH, observing respiratory precautions while taking care of the worker, and decontaminating the work area.

    For general guidance on the contents of a workplace COVID-19 response plan, please see the Appendix, in conjunction with the Action Point Checklist.

    4. Can I direct my employees to go home or stay at home if there is an outbreak?

    Yes. The various Labor Advisories issued by the DOLE authorize employers to arrange alternative work arrangements for its employees, such as working from home, or to place its employees on forced leave due to the COVID-19 crisis.

    5. Can I direct an employee to see a doctor?

    Yes. Under DOLE’s Labor Advisory No. 04-20 guidelines, in the event that a worker is suspected of having COVID-19, the employer must, among other steps, refer the worker to the company healthcare provider or to the nearest local health center or hospital for laboratory confirmation if the worker’s medical history and symptoms are consistent with a suspected COVID-19 case.

    6. Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?

    The Philippines follow the principle of “no work, no pay”. However, to address the loss of income of employees due to the suspension of work brought about by COVID-19, employers must allow employees to charge their absences against their unused paid leave credits, without prejudice to other beneficial company practice or policies of the employer.

    7. Can I quarantine certain staff to certain parts of an office or send them to a different office?

    Yes. DOLE’s Labor Advisory No. 04-20 provides that, in the event that a worker is suspected of having COVID-19, the employer must, among other steps, isolate the worker immediately in a separate well-ventilated room in the workplace, away from other workers.

    8. Can I direct my employees to report suspected cases of COVID-19?

    Yes, in compliance with the Mandatory Reporting of Notifiable Diseases and Health Events of Public Health Concern Act (Republic Act No. 11332).

    However, it is unclear whether an employer can require its employees to report suspected cases pertaining to other employees due to privacy issues.

    9. Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?

    Yes. DOLE’s Labor Advisory No. 01, Series of 2020, provides that employees who fail or refuse to work by reason of imminent danger resulting from a calamity, such as the COVID-19 epidemic, must not be exposed to or subject to any administrative sanction.

    10. Can I screen employees and customers before allowing them to enter the workplace?

    Yes. One of the responsibilities of an employer is to monitor the health of workers. Screening employees before allowing them to enter the workplace is an activity that can be considered as monitoring the health of workers. Government offices and private companies in the Philippines conduct temperature scanning and require the wearing of face masks before allowing customers and visitors to enter the workplace as preventive measures against the spread of COVID-19.

     

    CONTACT:  Romulo Mabanta Buenaventura Sayoc & De Los Angeles  |  Enriquito J. Mendoza  |  Enriquito.Mendoza@romulo.com  |  www.romulo.com

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    Appendix: Workplace COVID-19 Response Plan

    A plan should deal with the following:

    BEFORE AN OUTBREAK

    • Preventive measures.
    • Disinfecting the workplace regularly.
    • Maintaining good indoor ventilation.
    • Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
    • Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
    • If employees are required to travel to areas known to have the virus, whether such travel is necessary.

    DURING AN OUTBREAK

    • The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from government/official sources as to what steps need to be taken, e.g., quarantine requirements.
    • Communication strategies such as how and what information will be communicated to employees, suppliers and customers.
    • Where employees will work, e.g., home, in the office or in alternative temporary offices.
    • At what stage will the workplace be closed and who will decide that.
    • How to deal with infection and/or deaths of colleagues, e.g., counselling.
    • A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
    • What to do with high-risk/exposure staff (e.g., pregnant, key employees and employees who travel).

    AFTER AN OUTBREAK

    • Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
    • Rehabilitation for sick employees returning to the workplace.

    Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak. Therefore, depending on the circumstances, employers may wish to:

    • Discuss with staff the possibility of a workplace closure prior to closing.
    • Allow employees to take annual leave or unpaid leave once sick leave has been exhausted.
    • Allow employees to work from home.
    • Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down.

    Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.

     

    This publication by Romulo Mabanta Buenaventura Sayoc & De Los Angeles provides information and comments on legal issues and developments that may be of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek legal advice before taking any action with respect to the matters discussed herein.