FAQs for Employers and Employees in light of COVID-19
(Picazo Law, as of 26 March 2020)
An Enhanced Community Quarantine (“ECQ”) was effected for the entire Luzon from 15 March 2020 up to 13 April 2020 due to COVID-19. Due to the ECQ, the operations of various business were affected. Several questions are presented for employers and employees alike during these uncertain times. Below are some of the oft-asked questions by employers and employees. Please note that the information below is based on available data as of writing. This document is meant as a general guide but not meant to substitute for legal advice which may be particular to your type of business or concern.
1) Who are allowed to operate during the Enhanced Community Quarantine (“ECQ”)?
The following may continue operations during ECQ (“Covered Enterprises”). We also note that under Republic Act No. 11469 (RA 11469 or the Bayanihan to Heal as One Act) owners and possessors of privately-owned hospitals, medical and health facilities, including passenger vessels and other establishments directed by the President to function must also operate otherwise, such refusal would be punishable with imprisonment of 2 months or a fine of not less than Php10,000.00 but not more than Php1,000,000.00 or both;1 also, if these establishments are no longer capable of operating their enterprises, the President may direct a takeover of their operations. 2
a) All manufacturing, retail, and service establishments are advised to remain in operation during the community quarantine period, provided that social distancing and other safety and health measures are strictly observed:
b) BPOs and Export Oriented Industries
c) Media Companies
e) Those that have implemented a “Telecommuting/Work from Home” scheme with their employees
f) Hotels or similar establishments, but only for the following:
2) Will employees be allowed to travel for work?
Staff or employees working in the Covered Enterprises shall be allowed to report for work provided that they present proof of employment and residency in checkpoints such
a) Identification Card (ID) containing the company address/place of work and employee’s place of residence; or
b) Certification of employment issued by the company which shall state the place of work.3
3) Are caregivers for sick people exempt from the travel ban?
Yes, caregivers for the sick are exempt from the travel ban. As already mentioned, all healthcare facilities shall be fully operational and their employees, including caregivers, shall be allowed to move from Metro Manila to other regions and vice versa.
4) Can a person who needs to go to work for an essential industry but who does not know how to drive have the service of a driver to go to and from work?
No. While close-in staff necessary or connected to the movement of select public officials are exempted from the Enhanced Community Quarantine, no such qualification was provided for employees of essential industries.4 Therefore, the exemption to employees who work for essential industries do not extend to drivers of vehicles, whether public or private. However, if the driver is also an employee of the covered establishment, then he should be allowed to drive for the officer, provided social distancing is observed, meaning the passenger should stay at the back.
5) If I am not a Covered Enterprise, how can I process the payroll of my employees during the ECQ?
In relation to payment of wages or salaries, the Inter-Agency Task Force (“IATF”) strongly encourages companies to process payrolls online. However, for those who cannot, one payroll manager for each company is allowed to travel on March 26 and 27, for the purpose of processing their company payrolls covering the period until 15 April 2020.5
6) What options are available to continue business operations?
The adoption of flexible work arrangements is advised to continue business operations for those businesses which are not covered by any exemption.
7) What is the meaning of “flexible work arrangements”?
Flexible work arrangements refer to alternative arrangements or schedules other than the traditional or standard work hours, workdays, and workweek.6
The following are the flexible work arrangement which may be considered, among others:
a) Telecommuting/work from home refers to work arrangement in which the employee works outside the office, often working from home.
b) Compressed Work refers to one where the normal workweek is reduced to less than six (6) days but the total number of work-hours of 48 hours per week shall remain. The normal workday is increased to more than eight hours but not to exceed twelve hours, without corresponding overtime premium. The concept can be adjusted accordingly depending on the normal work week of the company pursuant to the provisions of Department Advisory No. 02, series of 2004, dated 2 December 2004.
c) Reduction of Workdays refers to one where the normal workdays per week are reduced but should not last for more than six months.
d) Rotation of Workers refers to one where the employees are rotate or alternately provided work with the workweek.
e) Forced Leave refers to one where the employees are required to go on leave for several days or weeks utilizing their leave credits if there are any.
f) Broken-time schedule refers to one where the work schedule is not continuous but the work-hours within the day or week remain.
g) Flexi-holidays schedule refers to one where the employees agree to avail the holidays at some other days provided there is no diminution of existing benefits as a result of such arrangement.
Under these flexible work arrangements, the employers and the employees are encouraged to explore alternative schemes under any agreement and company policy or practice in order to cushion and mitigate the effect of the loss of income of the employees.7
8) Can a company require employees to work only for 4 hours and pay 50% of basic pay during the lockdown?
Yes. In fact, alternative work arrangements such as reduced work days or hours are highly encouraged by the DOLE and preferred over the outright termination of the services of employees.8
This kind of arrangement is a better alternative to outright termination of an employee in times of national emergencies such as the present pandemic issue in accordance with social justice and fairness.
9) How can an employer implement FWA?
Under Labor Advisory No. 9, series of 2020, establishments adopting FWA must post a copy of said advisory in a conspicuous location in the workplace. Given the ECQ, assuming that no FWA was adopted prior to compliance with this requirement, we suggest disseminating a copy via electronic means and through the company website to its affected employees.
The employer is also required to submit to DOLE a Report Form at least one (1) week prior to implementation. Given the current circumstances, we advise employers to still comply with the submission of the Report Form even if the arrangement has already been implemented or the one-week notice proves to be too prejudicial, and likewise indicate in the Notice to DOLE the justifiable reason why the one-week notice period cannot be complied with.
10) Will the lockdown period be included in the computation of 13th month pay?
As of this writing, no rules are given out by DOLE for any adjustments.
It is noted that business establishments are encouraged to release a pro-rated 13th month pay to their employees amid the pandemic issue.9
11) How would the absences of the employees be treated?
In DOLE Department Advisory no. 2, series of 2009, the DOLE provided that the leaves of absence during the community quarantine period shall be charged against the worker’s existing leave credits, if any. However, in a recent press conference DOLE Secretary Silvestre Bello III stated that no employer may compel his employee to use his leave credits. According to DOLE, if the employee refuses to use his or her leave credits, the no work, no pay rule shall apply. DOLE further made a clarification that it will be a different matter in case a worker becomes a person under investigation (PUI) or person under monitoring (PUM) due to COVID-19. It said PUIs and PUMs will be paid during their quarantine period regardless if they filed their leaves or not.
Remaining unpaid leaves during said period may be covered and be subject to the conditions provided in the DOLE’s proposed Adjustment Measures Program.10
12) Can the company lay off employees?
Yes, as of this writing, there are no governmental restrictions on the prerogative of companies to lay off its employees, subject to the usual due process requirements of notice both to DOLE and the employee/s and payment of the appropriate separation pay.
However, as better alternatives to outright termination of the services of employees or the total closure of the establishments, companies that continue to operate are highly encouraged to adopt FWAs such as telecommuting, work from home, reduction of days/hours, and the like.11
13) Is there government assistance for affected employees?
DOLE Financial Assistance
Under DOLE D.O. 209, the DOLE has promulgated the Guidelines on the Implementation of the COVID19 Adjustment Measures Program (“CAMP”) which is a safety net program that offers financial support to affected workers in private establishments that have adopted Flexible Working Arrangements (FWA) or temporary closure during the COVID-19 pandemic.
A one-time financial assistance equivalent to Php 5,000.00 from the concerned DOLE Regional Office shall be provided to affected workers in a lump sum, non-conditional, regardless of employment status provided that the applicant is employed in a private establishment that has implemented flexible work arrangements or temporary closures due to the COVID-19 pandemic.12
Under RA 11469, the President is authorized to provide an emergency subsidy to around eighteen (18) million low income households provided the following conditions are complied with:
a) the subsidy shall amount to a minimum of five thousand pesos (Php 5,000.00) to a maximum of eight thousand pesos (Php 8,000.00) a month for two (2) months;
b) the subsidy shall be computed based on the prevailing regional minimum wage rates;
c) the subsidy received from the current conditional cash transfer program and rice subsidy shall be taken into consideration in the computation of the emergency subsidy.13
In addition, all public health workers should be protected with a COVID-19 special risk allowance in addition to the hazard pay granted under the Magna Carta of Public Health Workers or R.A. No. 7305.14 Furthermore, the Philippine Health Insurance Commission shall shoulder all medical expenses of public and private health workers in case of exposure to COVID-19 or any work-related injury or disease during the duration of the emergency.15
a) a compensation of one million pesos (Php 1,000,000.00) shall be given to public and private health worker, who may die while fighting the COVID-19 pandemic;
b) the compensation mentioned above shall have retroactive application to February 1, 2020.16
An expanded and enhanced Pantawid Pamilya Pilipino Program will also be implemented, responsive to the need posed by the crisis, and provision of an assistance program, whether in cash or non-cash, whichever is more practicable, where the DSWD or DOLE, when relevant, shall transfer cash, cash voucher, or goods through the LGUs or directly to households who have no incomes or savings to draw from, including households working in the informal economy and those who are not currently recipients of the current Pantawid Pamilya Pilipino Program, of an amount adequate to restore capacity to purchase basic food and other essential items during the duration of the quarantine.17
14) Who are qualified to avail of CAMP?
According to DOLE D.O. No. 209, CAMP covers ‘affected workers’ who are defined as workers in private establishments, regardless of status (i.e., permanent, probationary, contractual18) whose employment face or suffer interruptions due to the COVID-19 pandemic, such as:
a) Retained workers who do not receive regular wage – workers whose working hours and, therefore, regular wage is reduced due to the implementation of Flexible Work Arrangements (FWA) (i.e., reduction of workhours/workdays, rotation of workers, forced leave19) as mitigating measures enforced by the employer
b) Suspended workers – workers whose employment is temporarily suspended by reason of the suspension of operations of the employer’s business establishment20
Government employees are excluded from the program.21
DOLE subsequently issued Labor Advisory No. 12, Series of 2020, which clarified, among others, the definition of affected workers, as follows:
“1. Definition of Affected Worker [Article 1, Section 3(b)]. Affected workers, regardless of status (i.e., permanent, probationary or contractual), are those employed in private establishments whose operations are affected due to the COVID-19 pandemic.”
However, the issuance of such clarificatory opinion does not detract from the nature of the financial assistance as a one-time, non-conditional grant intended to “provide affected workers with financial relief to mitigate the adverse economic impact of the COVID-19 pandemic.” Thus, if the employees are already receiving their regular salary during the relevant quarantine period even if they have not actually reported for work, then such employees are not entitled to the financial assistance under CAMP.
15) What are the requirements to avail of CAMP?
a) Eligibility Requirements - Applicant must be a private establishment that has implemented FWAs or temporary closure due to the COVID-19 pandemic, otherwise known as an ‘Affected Establishment’
b) Documentary Requirements - Affected establishment must submit:
c) Application Procedures
d) Denial of Application - An application may be denied by the DOLE Regional Director upon determination of any of the following grounds
16) Is the employer required to advance the financial assistance provided for under CAMP?
No. The concerned DOLE Regional Office shall issue the financial support directly to the beneficiary’s payroll account through bank transfer at the soonest possible time upon receipt of complete documentary requirements. For cash payroll, financial support shall be received through money remittance.27
Beneficiaries who receive the financial support are considered to have completed the CAMP. A Notice of Completion shall be issued to the affected establishment within three (3) working days through electronic mail.
A one-time financial assistance equivalent to Php 5,000 shall be provided to affected workers in lump sum, non-conditional, regardless of employment status.29
17) If a company continues to operate, can it still avail of CAMP?
Yes. CAMP covers private establishments that have implemented FWAs.30 However, those employees who continue to receive their regular salaries despite the implementation of the FWA are not considered as “affected employees” entitled to financial assistance under CAMP. This is consistent with the position taken by the authorized representatives of DOLE in a recent webseminar on CAMP that if the employer pays the salary of its employees during the ECQ, then the employees are not qualified to avail of the financial assistance under CAMP.
18) What salaries and benefits are employers legally required to give its employees during the ECQ?
Generally, the principle of no work, no pay applies. However, the DOLE has been encouraging private sectors to give salaries to their employees even with the ECQ. Large employers, in particular, are encouraged to pay in full the salaries of their employees during the ECQ period. This, however, depends on management prerogative.
1RA 11469, Sec.6 (b).
22 RA 11469, Sec. 4(h). 3DOLE Department Advisory No. 11, s. of 2020. 4See: IATF-EID Resolution No. 14 dated 22 March 2020. 5IATF Resolution No. 15, s. of 2020, 24 March 2020. 6DOLE Department Advisory No. 2, s. of 2009. 7Ibid. 8See: Statement of Secretary Silvestre H. Bello III dated 19 March 2020, DOLE Labor Advisory Nos. 9 and 11, series of 2020, IATF-EID Resolution Nos. 12 dated 13 March 2020, 11 dated 12 March 2020, 10 dated 9 March 2020. 9Memorandum from the Executive Secretary dated 16 March 2020. 10DOLE, Department Advisory No. 11, s. of 2020. 11DOLE Labor Advisory No. 11, Series of 2020. 12D.O. 209, Sec. 1. 13RA 11469, Sec. 4(c). 14RA 11469, Sec. 4(d). 15RA 11469, Sec. 4(e). 16RA 11469, Sec. 4(f). 17R.A. No. 11469, Sec. 4(cc). 18DOLE Labor Advisory No. 12, Series of 2020. 19DOLE Labor Advisory No. 09, Series of 2020. 20Article I, Section 3(b), DOLE D.O. No. 209, Series of 2020. 21Article II, Section 4, ibid. 22See attached Establishment Report Form. 23DOLE Labor Advisory No. 12, Series of 2020. 24See attached Directory for Online Submission of CAMP Requirements. 25Fraudulent misrepresentation or false statement that will have a negative effect in the evaluation which was made knowingly, or without belief in its truth, or recklessly whether it is true or false. 26Article IV, Section 2, DOLE D.O. No. 209, Series of 2020. 27DOLE Labor Advisory No. 12, Series of 2020. 28Article IV, Section 2(a)(ii), DOLE D.O. No. 209, Series of 2020. 29Article III, Section 1, ibid. 30Article I, Section 3(a), ibid.
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