JOINT MEMORANDUM CIRCULAR NO. 20-04-A: DTI AND DOLE SUPPLEMENTAL GUIDELINES ON WORKPLACE PREVENTION

compiled by:

Atty. Gerald Dick B. Baro

and Mr. Andrew Gallardo, J.D.

RATIONALE [1]

The Supplemental Guidelines were issued by the Department of Trade and Industry (DTI) and Department of Labor and Employment (DOLE) to assist workplaces in the private sector in their preparations for the return-to-work of workers and resumption of on-site operations, after lifting the Enhanced Community Quarantine (ECQ) by adapting to the “new normal” protocols designed to mitigate the spread of the Corona virus. [2]

As provided in the Guidelines, the following are the elements of a total precautionary measures for the containment of COVID-19 in workplace, to wit:

1. Increasing physical and mental resilience

2. Reducing transmission of COVID-19:

3. Minimizing contact rate

4. Reducing the risk of infection from COVID-19

5. Remote Management of Cases and Close Contacts

6. Isolation and Referral

7. Contact Tracing

8. Duties of employers and workers

9. COVID-19 Testing

10. Disinfection and Closure of Buildings/Workplace[3]

Please note that the guidelines are applicable to all private establishments regardless of economic activity and shall become effective immediately upon its publication and filing with the University of the Philippines Law Center. It also provides that employers are required to implement all necessary workplace safety and health programs at no cost to the employees.

In line thereto, we have compiled and formulated some of the frequently asked questions in order to help you better understand the said guidelines.

Frequently Asked Questions:

I. General Principles.

A. Are the Guidelines applicable also to micro enterprises?

- As a general rule, YES. The Guidelines are inclusive. It is no different from the previous DOLE issuances on OSH. It was issued to provide the minimum acceptable degree of protection that must be afforded to every worker against the COVID-19 virus. However, there are provisions which apply only to employers with total assets of above P15 Million, such as the procurement of shuttle services and setting up of isolation areas. However, even small businesses are encouraged to have these measures.[4]

B. Can a worker on WFH arrangement be entitled to an OT pay for work performed beyond 8 hours? If the supervisor/manager would require an employee to do additional tasks during his/her rest day, is the worker entitled to a premium pay?

-Yes to both. Please refer to DOLE DO 202 s. 2019 which is the IRR of the Telecommuting Act providing for non-diminution of benefits as part of the telecommuting program of the company.[5]

C. As for the mandatory advocacy awareness, is there a prescribed minimum time for it?

-This shall fall under the sound judgment of the employer. What is important is the establishment must update their workers on the current policies being issued by the government that may affect them.[6]

D. Are companies required to submit a monthly report form to DOLE (WAIR Form) even if there are no cases of illnesses/diseases/injuries during the month?

- Yes. Submission of WAIT report even without cases would make the DOLE aware that the company has a functional COVID-19 Prevention Guidelines. Hence, a monthly submission at this time is required whether or not there are cases.[7]

E. Regarding the mandatory reporting through WAIR COVID-19 Form, must contractors include the test conducted for deployed workers even if the principal was the one who paid for the COVID Test? (Asked during an Online Legal Forum)

-Yes. WAIR reporting is required on a per establishment basis. The establishment refers to the employer of the deployed employee. Hence, the contractor’s deployed employees must be reflected in its WAIR reports, even if it was the principal/client who shouldered the costs for the Covid testing[8].

F. Must there be an individual reporting per branch or should there be only one reporting for the entire company?

-Workplaces, whether public or private, are required to accurately and immediately report notifiable diseases and health events of public health concern with DOH or its local counterparts. Since monitoring is done by the respective local government units, reporting should be done locally, on a per branch basis[9].

G. What is the structure required for the OSH Committee? Must the HR Head be the OSH Head? Must the members be licensed?

-DOLE Department Order No. 198-18 does not specify as to what position shall head the OSH Committee. It only mentions that the employer or its representative shall head the OSH Committee depending on the size and risk level of the establishment. A safety officer, who has undergone the mandatory Basic OSH training by a DOLE accredited service provider, is required to be the member-secretary of the OSH Committee.

H. Is there a new requirement as to the number of Nurses, Safety Officers or Health Officers in the worksite?

-No. The requirements mentioned in RA 11058 or the OSH Law and its IRR, DOLE DO 198 series 2018 must be complied with.[10]

I. As for the safety officer requirement, for companies with already established OSH Committees, can the Safety Officers come from this Committee as long as said person falls under the description in the footnote (first aider/nurse/doctor)? Will this be per site or can there be one assigned for the whole company?

-Ideally, Safety Officers, because of their big responsibilities should not come from OH Personnel as nurse or physician as these categories of OH Personnel also have big responsibilities they could handle. But for micro establishments, because it is easier to manage because of relatively few workers, flexibilities are allowed on them as for the SO to have dual functions and to handle other nearby sites.

J. What are the LEGAL CONSEQUENCES for non-compliance with any of the provisions of the Joint Memorandum Circular?

- In case of non-compliance, the private establishment may be temporarily closed until it is shown that the establishment is in full compliance with the prescribed minimum health protocols.[11]

Penalties may be imposed by DOLE based on the administrative penalties as enshrined in DOLE DO198, series of 2018, but only in instances of willful failure on the part of the management to comply.[12] This is without prejudice to civil and criminal cases may be filed by other government authorities in violation of RA 11469 or the Bayanihan to Heal as One Act as well as other existing laws, rules and regulations.[13] This is also without prejudice to fines and penalties that may be imposed by the Local Government Unit.

K. Can the employer or building owner penalize employees/visitors who violate the minimum public health standards like wearing of face shield/facemask?

-Yes, however, this company policy should be agreed upon by employers and workers. Due process must also be followed.[14]

L. What is the extent of non-compliance which would warrant the penalty of closure of establishment?

-It is not the intent of the DOLE and other regulatory agencies of the government to close the establishments which violates certain minimum public health requirements. However, penalties may be imposed by DOLE based on the administrative penalties as enshrined in DOLE DO198, series of 2018, but only in instances of willful failure on the part of the management to comply. But this is without prejudice to the penalties that the LGUs may impose upon them which includes closure.[15]

M. What are the punishments that may be imposed in case of discrimination due to a suspected or confirmed COVID 19 infection?

-Workplace discrimination is punishable by an administrative fine under DOLE’s jurisdiction. Under the latest DOH Implementing Rules and Regulation of R.A. 11332, discrimination, even outside the workplace is considered as a punishable act which falls under the definition of non-cooperation. A criminal case may be filed before the proper courts having jurisdiction over the same, after a preliminary investigation by the DOJ prosecutor’s office.[16]

N. Can the employer terminate the employment of workers who refuse to report to work despite the availability of public transportation, shuttle services, and compliance with the minimum health standards?

-This is usually referable to the company rules and policies. However, the DOLE is requesting employers to be more compassionate and understanding on the concerns of their workers. Company policies must be clear on procedures that may be used if the above condition arises.[17]

O. Is everyone required to give information to the Barangay Health Emergency Response Team (BHERT) regardless if there is close or general contact?

-Failure or refusal of the person or entity identified by a public health authority identified as suspect, probable or confirmed case to provide the required information necessary for disease surveillance or response, including for contact tracing activities; as well as Failure by close contacts to cooperate/submit to public health authorities doing contact tracing activities upon being notified of their status as such; are considered as punishable acts of non-cooperation under Republic Act No. 11332[18].

II. Intervention Protocols Before Entering the Workplace.

A. Are employees mandated to undergo COVID-19 testing?

-Only employees who are exhibiting symptoms of COVID-19, and their close contacts in the workplace, are required to undergo COVID-19 Testing. If there is no manifestation of infection, even if the employee concerned interacts regularly to the public, testing is voluntary. [19]

B. Who will shoulder the COST for Covid-19 Testing?

-If the employee is exhibiting symptoms of COVID-19, or even if no symptoms are being manifested but the employer requires its employees to undergo COVID-19 testing, the employer shall shoulder the cost of testing.[20]

Otherwise, the employee shall pay it on his/her own.

C. Is COVID-19 testing result mandatory as part of pre-employment? If not, what should be done to companies requiring this as a pre-employment requirement?

-No, COVID-19 test result should not be a requirement for pre-employment.

Companies requiring this may be reported to DOLE Regional/Field/Provincial Offices.[21]

D. Can a building owner/lessor require rapid test results from the employees of the lessee before they will be allowed to enter the building premises?

-That should be based on the agreements of the owner and the lessee, however as mentioned earlier, testing has its limitations as the results are valid only in a given period of time.[22]

E. Is the provision of shuttle service/s by large and medium establishments mandatory or voluntary when the Guidelines states they are enjoined?

-No, the interim and the supplemental guidelines of the DTI and DOLE mentions enjoining, i.e., highly recommending employers of medium-Large sized establishments and with more than 15 Million to provide shuttle service to their workers. Arrangements as to cost sharing with the workers are also allowed.[23]

F. What is included in the term “total asset”?

- Assets shall refer to total assets, inclusive of those arising from loans but exclusive of the land on which the particular business entity's office, plant and equipment are situated.[24]

G. Must a special permit be procured for engaging shuttle services?

-The LTFRB announced last August that Public Utility Vehicles hired by companies as shuttle services will no longer need to secure special permits. Transportation Assistant Secretary Libiran however announced that drivers of these company shuttles must have on hand a copy of their PUV certificate and authorization letter or letter of intent from the company in case of inspection[25].

H. What safety measures must be observed within the entrance/s of establishments?

- The following are the different interventions establishments are required to comply with:

1. No facemask, No entry policy[26];

2. Accomplishment of Health Symptoms Questionnaire for assessment[27];

3. Temperature checked and recorded in the Health Symptoms Questionnaire (refer to the Annex of the Guidelines)[28];

4. Provision of a well-ventilated holding area[29];

5. Designated health officer provided with appropriate PPEs[30];

6. Disinfecting foot baths in all entrances are optional[31].

I. What are the SOPs to be observed before entering the workplace?

- The temperature must first be checked at the entrance of the building. If the body temperature is more than 37.5 degrees Celsius, the employee should be denied entry and referred to the workplace isolation area for further evaluation by the Safety Officer[32].

If less than 37.5 degree Celsius, the employee shall accomplish a health declaration form such as the template annexed in the guidelines. Questions shall include physical manifestations of COVID-19 symptoms and contact with suspected or confirmed COVID-19 patients. If an employee answers in the affirmative to any of the questions, the employee should likewise be denied entry and referred to the workplace isolation area for further evaluation by the Safety Officer[33].

Note that the health declaration form is highly confidential and must be disposed of properly after thirty (30) days from date of accomplishment[34].

J. Are all workers required to accomplish the Health Symptom Questionnaire daily? Accomplishing the daily health questionnaire may result in long queue lines, what interventions can be done to avoid this?

-As a general precautionary measure, YES, all workers are required to answer the daily questionnaire.[35] The daily questionnaire is not limited to questions on travel history alone but also on symptoms. For companies wishing to avoid long queue lines, they may implement a gliding schedule, work from home when possible, and other work arrangements which may limit the number of workers at a particular time.[36]

K. Can online filling-out of health declaration form be made?

-Yes.

L. Can the employer include additional questions in the Health Declaration Form?

-Yes. Additional questions may be added as long as this would be useful for

determining health condition. Contact tracing information shall be limited to those indicated in the contact tracing form. Additional questions may be asked but these shall not be related to personal information of the workers/visitors.[37]

M. Are workers, who are provided accommodations by the employer, still required to accomplish the Health Symptom Questionnaire daily?

- To facilitate faster access, companies may opt to use a modified checklist which is limited to questions on signs and symptoms only, for their stay-in workers. For instances wherein workers will be allowed to go home from time to time as part of their work-arrangements, upon their return to work, they shall be required to accomplish the complete prescribed checklist[38].

N. Must the daily health survey questionnaire form be filled out by employees even those who are working from home?

-The Health Declaration Form (HDF) is a means for the worker to perform daily self-assessment and declare their status of health to the employer. This can be a means to screen workers going in to the establishments and a means for employers to ascertain the health of workers not physically reporting for work.[39]

O. Are all visitors of an establishment required to accomplish the prescribed Health Symptom Questionnaire?

-As a general rule, YES. All persons, whether or not they are workers, clients or visitors are all required to accomplish the daily questionnaires[40]. However, for malls, groceries and other public establishments, since a huge volume of clients is expected, establishment/s may just perform temperature check using a non-contact thermometer. In addition, other new normal interventions such as physical distancing, mandatory wearing of face masks and provision of washing facilities shall remain. These establishments are also encouraged to post an advisory to the public to refrain from going inside if a shopper has COVID19- like symptoms[41].

P. What will be the implication if the health survey questionnaire or contact tracing form does not provide for an authority for the employer to collect the details requested therein, or that the signature of the employee was not provided?

-Collection is justified for the specific legitimate purpose of contact tracing as required under the DTI-DOLE JMC. Consent is only required when disclosure or further processing will be made, or when there is no lawful purpose for further processing of the personal information of the data subject. [42]

Q. Guidelines provide that contactless forms shall be disposed after 30 days. Is it safe to assume that the same period shall apply to printed forms?

-Yes, the Contactless forms shall be handled with the utmost confidentiality and securely disposed of after thirty (30) days. The same shall apply to printed forms which may also be disposed of after 30 days by the use of paper shredders to ensure that personal data are not viewed and shared by others.[43]

R. For buildings with multiple tenants, who shall perform temperature checks and assessment on whether or not employees and clients will be allowed to go inside?

- For buildings with multiple tenants, the joint safety and health committee shall be in-charge of the implementation of this DTI-DOLE Joint Memorandum Circular. The Committee shall be headed by the building owner or his/her representative with the safety officers of the building’s tenants as members. The tenants may opt to share resources and coordinate their safety and health measures to ensure the successful implementation of this guideline[44].

S. For establishments where the work from home arrangement is not feasible as those in the manufacturing or service sectors, how do we protect the most-at-risk population? Will they be denied employment during this time?

-Most-at-risk population includes senior citizens, pregnant women, individuals with underlying health conditions and those below 21 years of age[45]. They are encouraged to be under a work-from-home arrangement. However, they are allowed to report to work provided that a certificate of fit to work is issued by the OSH personnel and must stay in the workplace only for specified hours[46]. Those who are at least 18 but below 21 years old can work for eight (8) hours in the workplace provided that a fit-to-work examination is conducted and the corresponding certificate issued by a competent authority, which includes occupational health physicians and government doctors with a background on occupational health.[47]

For establishments with these types of workers, special work accommodation may be given to them such as priority for transport service, provision of sleeping quarters or other arrangements agreeable to both parties. They shall not be discriminated upon to work and make a living[48].

T. If the nature of the work/job requires physical presence in the office, can the employer temporarily include in its criteria for hiring that an applicant/candidate should not belong to the MARP group?

-No, this is discriminatory.[49]

U. If the work requires the physical presence of an employee, can a pregnant woman validly execute a waiver so that she can report for work?

-Because of a pregnant workers condition and unduly exposing her to the risk of COVID 19 infection from exposure to asymptomatic COVID cases, she is strongly advised to work from home. This arrangement is temporary until the delivery of her infant and after her maternity leave, she may opt to return to the workplace.[50]

V. Are MARP individuals allowed to render OT work?

-They belong to the vulnerable category where infection with COVID 19 may cause severe and critical illness. Exposing them to prolonged working hours shall increase their risk in being infected with COVID 19.[51]

W. Is there a guideline for determining the work hours of the workers on a WFH arrangement?

-Yes, may we refer you to RA 11165 Telecommuting Act1 and its IRR DOLE DO 202 s. 20192 that provides for work days and work hours as part of the telecommuting program of the company.[52]

III. Reducing Transmission Inside the Workplace.

A. Are employers required to provide facemask and face shield to employees?

-Yes, the government issued guidelines had placed the burden of providing these minimum PPEs to their workers in line with RA 11058 or the OSH Law. DOLE Labor advisory 18-2020 and DTI-DOLE JMC 20-04-A also reiterates employers in providing for all COVID 19 preventive measures.[53]

B. What are the type of face masks and face shields allowed under the guidelines?

- Medical grade masks and cloth masks WITH filters are allowed. Cloth masks without filters and masks with vents are prohibited.[54]

Face shields must cover the entire face, meaning it extends to both sides of the face and the chin. Visor-type face shields are not allowed.[55]

C. Must face masks and face shield be worn even inside the workplace?

-Yes. Face masks must be worn at all times. Face shields must also be worn EXCEPT when the nature of the work to be undertaken demands otherwise.[56]

D. Can workers work side by side so long as they wear facemask and face shield?

-No, the wearing of PPE and face shields are not stand-alone protection. These PPEs should be use together with the other minimum public health standards as physical distancing.[57]

E. Can facemask be removed if there is a plastic or acrylic barrier installed on each station?

-No, the use of face masks is part of the minimum health standards that must be observed by everyone. Face masks are PPEs for the face, face shields and barriers are meant as secondary protection and must not be considered as an option as replacement to the face mask.[58]

F. Is the use of foot bath mandatory?

-The use of foot bath is not a mandatory requirement for workplaces in the Guidelines but an option for employers.[59]

G. How much should the physical distance of the employees be to each other?

-A physical distance of at least one (1) meter is required EVEN if face masks and face shields are being worn. Furthermore, designated smoking areas in the workplaces shall be provided with individual “booths” to ensure the minimum one (1) meter distance.[60]

The one (1) meter physical distancing is mandatory and in fact, the minimum as some standards even require a minimum of two meters between two adjacent workers. For cramped establishments, to help maintain physical distancing; employers may have the option to implement skeletal workforce, work from home arrangements, shifting work schedule or any other similar work arrangements.[61]

H. Some industries like construction and the audio-visual industry have some work processes which make the required physical distancing impossible to implement. What can be done in such cases?

- Industries such as those in construction and audio visual shall have separate guidelines specific for their industries. It shall adopt the pertinent provisions of the joint DTI and DOLE Joint Memorandum Circular and craft other provisions peculiar to the nature of their work processes and ensure that these are aligned with the minimum health standards set by the Department of Health.[62]

I. If there is an ‘eat alone policy’ in the workstation, is the staggered meal schedule still required?

-If all workers can eat in their workstations, then there is no need for staggered meal schedules.[63]

J. If physical distancing and separate table for each employee is provided in the canteen, is it still necessary to provide physical barriers?

-Yes, the supplemental guidelines still require these barriers as secondary protection. Other behaviors such as no talking while eating should still be complied with.[64]

K. What are the disinfecting resources to be provided and where must this be placed?

-Aside from soap, sanitizers and hand washing stations, hand drying equipment or supplies such as tissue must also be provided. [65] These shall be put in the hallways, conference areas, elevators, stairways, points of entry, locker rooms, common areas such as pantry, bathroom, canteen and personal workspace, including company vehicles and shuttle services.[66]

IV. Management of Symptomatic and COVID-Positive Employees.

A. Who are required to set up an ISOLATION AREA?

-Similar to the requirement of shuttle service, establishment of an isolation area is mandatory only for establishments with total assets of above P15 Million. Establishments with multiple tenants are similarly obliged to secure a separate isolation area of one room for every 200 employees, which shall be other than the company clinic, and must be situated near the entrance/s or in a nearby facility, for employees needing further assessment due to elevated temperature, presence of flu-like symptoms, any yes answer to the Health Declaration, or exposure history to a COVID-19 case or probable case thereof.[67]

-The requirement of designating an isolation area of one (1) room for every 200 employees shall be based on the average number of employees actually reporting to work per shift.[68]

- The isolation area must be large enough to observe physical distancing and manned by “trained” personnel with appropriate PPEs. Contact details of the Barangay Health Emergency Response Team (BHERT) or referral hospitals must be posted in the area. Regular disinfection activities shall likewise be performed in the area.[69]

B. In case it is physically impossible for an establishment to construct an isolation area within its premises because of space requirements, what can an establishment do to address this?

- For establishments with difficulties in allocating the necessary space for an isolation area, open tents may be provided for this purpose. However, the requirements mentioned above must still be strictly observed and it must remain under the control of the employer.[70] The establishment is also advised to coordinate this matter with the LGU or the Barangay having jurisdiction over the workplace[71]. Clinics of establishments shall be separate and distinct from the isolation area[72].

C. What if all the employees in a medium/large-sized company are on work-from-home arrangement, will they still be required to put up isolation tents?

-The provision for isolation areas is required for all establishments. They may designate and enter into an agreement however with a local facility as the location for isolation. There will always be workers who will report physically in their office. Furthermore, clients or visitors visiting the establishment may need to be isolated.[73]

D. Regarding the isolation area requirement, for multi-tenanted buildings where the employer is one of the tenants, who will be the party responsible- the employer-tenant or the landlord (building owner)?

-The joint Safety and Health Committee may consider pooling their resources

together, to consider the warm bodies that may be present at a given time as in shift work, which will be their basis for the number of isolation facility that will be provided. Another option is for them to make arrangement with a private establishment or a Barangay Facility that may be utilized for this purpose.[74]

E. What is the measurement of an isolation area for the 1:200 ratio?

-The supplemental guideline did not give the exact measurement, but it should be spacious enough to observe the required physical distancing between the patient and the personnel assigned to look after the worker. Coordination between the local health office and the LGU may be done to properly provide the space requirement for the isolation area.[75]

F. Will the isolation area for every 200 employees in large and medium private establishments mandatory? If yes, a case scenario for big companies with 4,000 employees when operating at a 50% capacity, they will need 22 isolation facilities with its own restroom situated near the entrances. This will hardly be feasible for these large companies.

-The DTI DOLE JMC has made this requirement as mandatory. Although, there is a provision for establishments to make arrangements with a public or private facility for this purpose. Hence, it does not need to be physically set-up, what is important is that there is an arrangement for an isolation area for workers who need to be isolated.[76]

G. Is there a requirement on the number restrooms/bathrooms for the put-up isolation rooms or isolation tents?

-If there are limited rest rooms, they can disinfect after every use. Further, the DOH has a checklist for assessing isolation facilities, and the LGUs are already guided by these.[77]

H. What are the requirements for trained personnel in the isolation area? Is it necessary that he/she must have medical background?

- Ideally, trained personnel must have a medical background such as physicians, nurses or at least a first aider. However, in the absence of the above, any worker will do provided that he/she has BOSH training or at least a background on safety and health and knowledgeable on the mechanism of referral or coordination of action with government authorities[78].

I. How long will the suspect/probable case stay in the isolation area?

-This will depend on how fast the suspect or probable case is referred and picked up by health authorities. The very reason why we are recommending prior arrangements with the nearby health facilities or BHERT be made as a proactive measure. Suspect and probable cases may have to stay in the isolation area while awaiting release of RT-PCR results or resolution of symptoms, or for completion of required quarantine period.[79]

J. Companies are being denied by hotels/boarding houses knowing that these will be used as quarantine facilities. How can the government be of assistance to this?

-Establishments can seek assistance with their local government units (LGU) for this and for those who would like to make arrangements with hotels, contacting the Department of Tourism may provide a means of arranging hotel accommodation for COVID confirmed, suspect or probable cases.

K. How do I deal with ASYMPTOMATIC employees?

-RT-PCR test is not required for asymptomatic employees. If the employer wants to make sure however, he may clear the said employee through the company physician, if any, or a local health officer[80].

L. How do I deal with SYMPTOMATIC employees?

-The concerned worker shall immediately be placed in the isolated area. The personnel attending to this worker must wear the appropriate PPE. If needed, the worker must be transported to the nearest hospital[81].

M. How do I deal with employees who tested POSITIVE?

-The employee shall not be allowed to report to work until certified by a competent health officer that he is already COVID-free[82].

Meanwhile, the facility shall be disinfected with an appropriate disinfectant solution (0.5% bleach solution). The building must be locked down for 24 hours prior to disinfection to lessen transmission to sanitation personnel. The building may only be opened 24 hours after the disinfection process[83].

Granular lockdown of the building for disinfection may be allowed provided that the building has a company policy and/or OSH program for maintaining the safety of unaffected employees during disinfection and the safe entry of affected employees after disinfection.[84] Furthermore, a shorter lockdown of less than 24 hours may be allowed provided that the safety of employees is ensured under existing company policy and/or OSH program. However, a certificate of return to work from specialists/cleaners/disinfecting agents is ensured.[85]

N. Regarding the requirement on the OSH Officer/employer to report COVID-19 positive employees, symptomatic employees, and their close contacts, to the local health office having jurisdiction over the workplace and the Barangay Health Emergency Team (BHERT) of their place of residence, some employers have found it challenging to contact or report to specific barangays. Some BHERTs only have cellular phones that are not always reachable, and no email addresses. So for instance, a BPO company needs to report 5 cases in a day, they need to report to PEZA, the LGU with jurisdiction over the workplace, the DOH, and the BHERT of each employee’s place of residence, which is challenging for companies with a large number of employees. Are there ways to make this more doable or to ensure that all BHERTS’ contact information are available and they are reachable so that they companies could comply? Or can reporting be done instead to the City/Municipal Health Office of the employee’s residence instead of BHERT?

-Workplaces shall report to the local health office under their jurisdiction over their location. If BHERTS of residence of contact tracing cannot be reached. Report should be made to the City Health Office (CHO) / Municipal Health Office (MHO) especially if contacts are spread over several barangays.[86]

O. Since not all employees are working onsite, is the obligation to report positive cases only for those employees who are onsite or have been onsite within the past 14-16 days? Does the employer need to report employees who tested positive but are on remote work arrangement or have been in remote work arrangement for the past 14 days or more?

-Yes, it is the obligation of the employer as stipulated in report all positive cases whether onsite or on remote work arrangement.[87].

P. Is the company required to report to LGU/BHERT if the employee who become COVID-19 positive is on a WFH arrangement?

-Yes. All employees who test positive whether they report physically to work or work from home bust be reported to LGU/BHERT.[88]

Q. If the employee already filed a notice to the BHERT, is there requirement OSH/Safety officer to separately file a notice?

-Yes, the employer shall still report because it is their duty to report.[89]

R. Is a tenant in a multi-tenanted building obligated to inform the other tenants or the building management should there be a positive case in their office?

-The tenant may just need to inform the Joint OSH Committee of the building. Patient confidentiality must stil be observed.[90]

S. Is the employer obliged to conduct contact tracing when an employee tests positive?

- Yes, but only as to its workforce. It shall use all the means within its reach, such as CCTV records, to determine the close contacts of the infected employee in the workplace. Such close contacts must undergo a 14-day quarantine[91].

As for contacts outside the workforce, the employer is only mandated to inform DOH of the fact of infection of an employee. The DOH, in coordination with the local government, shall conduct the contact tracing to determine close contacts outside the workplace.[92]

T. Can an employee with facemask be considered as close contact if the COVID-19 positive employee also wears a facemask?

-To be considered a close contact, any of the three conditions must be satisfied:

1. Face-to-face contact with a confirmed case within one (1) meter and for more than 15 minutes, with or without a mask;

2. Direct physical contact with a confirmed case; or

3. Direct care for a patient with probable or confirmed COVID-l9 disease without using PPEs.[93]

U. Can the CCTV of the lessor be used in contact tracing by its tenants?

-Yes, together with interview and other means to determine contact tracing.[94]

V. On the requirement to lock down the building for 24 hours prior to and after disinfection, does this mean that for one confirmed COVID-19 case detected, closure would be a minimum of 48 hours?

-Disinfection may be done in less than 48 hours. Company policies on the 24 hours prior to disinfection may be shortened to consider the length of time the disinfection team is contacted and when they arrive for disinfection. The disinfection team should be in appropriate PPEs so they will also not be affected during the disinfection procedure.[95]

W. Can the post-disinfection shutdown be shortened depending on the disinfection method used?

-No, this is in consideration of the safety and health of the workers, as its intent is to ensure that the chemicals that were used have dissipated prior to their entry to the building.[96]

X. If the COVID-19 confirmed employee was present in the office 2 days prior to our knowledge of his COVID-19 case and frequent disinfection (every 2 hours) is being done daily, do we need to do an evacuation for disinfection purposes?

-There is no scientific or medical basis to still conduct the disinfection as 2 days have already passed and if ever there was just even a virus in the area, it may have already been rendered inactive by the disinfecting agent and the time that it failed to find a host for it to survive. But this does not preclude the employer from doing another round of a more intensive disinfection based on the recommendation of his/her safety officers.[97]

Y. On the disinfection requirement, if for example the employer was informed today that an employee tested COVID positive but his last day onsite was more than 14 days ago, does the employer still need to do the 48-hour closure for disinfection?

-There is no scientific or medical basis to still conduct the disinfection as 14 days have already passed and if ever there was just even a virus in the area, it may have already been rendered inactive by the disinfecting agent and the time that it failed to find a host for it to survive.[98]

Z. What are the options of the employer if its employee does not want to report for work because of fear of possible COVID-19 infection?

-The employer must first exhaust the necessary accommodations to the request. Alternative work arrangement may be considered. Company policies must be clear on procedures that may be used if the above condition arises.[99]

AA. In addition to the certificate issued by a physician, is the OSH personnel required to issue a Certificate of Fit Work?

-Fit to work by a company physician is different from the certificate of quarantine required from the barangay or the local health office.[100]

BB. How will closure/lockdown of a workplace/building be made? Does this apply for the whole building or for the affected area only?

-Granular/Segmented lockdown can be done based on the recommendation of the OSH committee. Such recommendations must be reflected in a committee meeting and incorporated in the Policy and Program on Workplace Prevention and Control of COVID-19.[101]

CC. Can the pre-disinfection shutdown be shortened if the COVID-19 positive employee has not been in the office for more than 24 hours?

-Yes.[102]

DD. During lockdown, does the principle of “no work no pay” apply?

- The principle of “no work no pay” applies, unless there is a more favorable company policy[103].

EE. Do all symptomatic employees and their close contact need to be RT-PCR tested?

-JMC 20-04-A III D 3 a state that all employees experiencing symptoms of COVID-19, and those who are close contacts must undergo RT-PCR testing. The decision of whether close contacts are to be tested shall be based on the recommendations of the contact tracers or surveillance officers of the local health unit.[104]

FF. Is there a need for a confirmatory test for an asymptomatic patient who rendered a 14-day quarantine?

-No. There is no more need for a confirmatory test prior to the return to work of an asymptomatic patient who has a completed a 14-day quarantine. A certification from the Barangay may suffice.[105]

GG. Can the 14-day quarantine period of a close contact be reduced if the result of the COVID-19 test is negative?

-The current DOH protocol requires close contacts to finish the 14-day quarantine period and a certification from the local health authorities is needed prior to return to his/her work.[106]

HH. If an employee tests positive for COVID-19, may his or her identity be revealed to his or her colleagues?

-No, unless consented to by the infected employee beforehand. Disclosure of identity of an employee who tests positive must only be made to DOH and entities authorized by the law and/or DOH. They shall be the ones responsible to do contact tracing[107].

However, the employer may make a general announcement that an employee tested positive for COVID-19 without however disclosing the identity of the infected employee[108].

xxx

NOTICE TO READERS: This article is for general information and educational purposes and does not, and should not constitute as a legal advice or legal opinion.

Atty. Gerald Dick B. Baro is a Junior Partner of the Sangalang & Gaerlan, Business Lawyers and a professor at the Far Eastern University.

gerald.baro@paladinslaw.org

He was assisted by Mr. Christian Andrew L. Gallardo, J.D., who is an associate of the Sangalang & Gaerlan, Business Lawyers and recently graduated Juris Doctor at the Ateneo Law School.

andrew.gallardo@paladinslaw.org

Photo from wired.com (https://www.wired.com/story/wired-cartoons-week-35/)

[1] Issued on 15 August 2020. [2] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020). [3] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020). [4] Id. [5] Id. [6] Bureau of Working Conditions, Frequently Asked Questions on DTI-DOLE Joint Memorandum Circular no 20-04A. [7] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph V. [8] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph V. in relation to Art 106 and Art 109 of the Labor Code of the Philippines [9] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph V. [10] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020). [11] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph VIII. [12] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020). [13] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020). [14] Id. [15] Id. [16] § 6, RA 11469 [17] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020). [18] § 9, RA 11332 [19] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph III D. [20] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph III D in relation to Book 3, Rule 7-A, Sec. 5 of Implementing Rules and Regulations of the Labor Code of the Philippines [21] Bureau of Working Conditions, Frequently Asked Questions on DTI-DOLE Joint Memorandum Circular no 20-04A [22] Id. [23] Id. [24] Id in relation to § 3, RA 9501 or Magna Carta for Micro, Small and Medium Enterprises. [25][25] Announced on 4th of August 2020 by LTFRB Assistant Secretary Goddess Hope Libiran. [26] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph II B. [27] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph II D. [28] Id. [29] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020). [30] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph III B. [31] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020). [32] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph II D 1. [33] Id. [34] Id. [35] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph II D. [36] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020). [37] Bureau of Working Conditions, Frequently Asked Questions on DTI-DOLE Joint Memorandum Circular no 20-04A. [38] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020). [39] Id. [40] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph II D. [41] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020). [42] § 12, RA 10173 or Data Privacy Act of 2012. [43] Bureau of Working Conditions, Frequently Asked Questions on DTI-DOLE Joint Memorandum Circular no 20-04A. [44] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020). [45] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph II C. [46] Id. [47] DTI and DOLE Advisory no 20-02 Section (b) [48] Id. [49] Bureau of Working Conditions, Frequently Asked Questions on DTI-DOLE Joint Memorandum Circular no 20-04A. [50] Id. [51] Id. [52] Id. [53] Bureau of Working Conditions, Frequently Asked Questions on DTI-DOLE Joint Memorandum Circular no 20-04A. [54] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph II B. [55] Id. [56] Id. [57] Bureau of Working Conditions, Frequently Asked Questions on DTI-DOLE Joint Memorandum Circular no 20-04A. [58] Bureau of Working Conditions, Frequently Asked Questions on DTI-DOLE Joint Memorandum Circular no 20-04A. [59] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020). [60] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph II B. [61] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020). [62] Id. [63] Bureau of Working Conditions, Frequently Asked Questions on DTI-DOLE Joint Memorandum Circular no 20-04A. [64] Id. [65] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph II B 2. [66] Id. [67] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph III B 1. [68] DTI and DOLE Advisory no 20-02 (c). [69] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph III B 2. [70] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020) and DTI and DOLE Advisory no 20-02 (c). [71] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph III B 2. [72] Id. [73] Bureau of Working Conditions, Frequently Asked Questions on DTI-DOLE Joint Memorandum Circular no 20-04A. [74] Id. [75] Id. [76] Id. [77] Id. [78] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020). [79] Bureau of Working Conditions, Frequently Asked Questions on DTI-DOLE Joint Memorandum Circular no 20-04A. [80] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph III D 4. [81] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph III D 3. [82] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph III C. [83] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph VI [84] DTI and DOLE Advisory 20-02 (d) [85] Id. [86] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020). [87] Id. [88] Id. [89] Id. [90] Id. [91] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph III C 4. [92] DTI and DOLE Joint Memorandum Circular No 20-04-A, Paragraph III C 5. [93] Bureau of Working Conditions, Frequently Asked Questions on DTI-DOLE Joint Memorandum Circular no 20-04A. [94] Id. [95] Id. [96] Id. [97] Id. [98] Id. [99] Frequently Asked Questions on DTI and DOLE Interim Guidelines on Work Preparation and Control, Bureau of Working Conditions (2020). [100] Id. [101] Id. [102] Id. [103] Aklan Electric Cooperative Incorporated v. NLRC, Retiso, G.R. No. 121439 (2000). [104] Bureau of Working Conditions, Frequently Asked Questions on DTI-DOLE Joint Memorandum Circular no 20-04A [105] Id. [106] Id. [107] NPC Circular no 7 series of 2020. [108] Id.