Can private entities procure COVID-19 vaccines? What are the rules in setting up a vaccination program in workplaces? Can an employer require his employee to take the vaccine?
Many of us who have been cooped up are always eager to get the latest update on the COVID-19 vaccine rollout. Medical experts and government officials say that vaccines are key for the world to easily go back to its normal life. Normal life means going out without face shields atop facemasks and social interaction without fear of bringing home the virus.
Sadly for the Philippines, vaccine supplies come in trickle compared to the number of daily infections reported in the thousands. Vaccination has become a race against further virus transmission and potential mutation. The government leads this huge task; but, admit it or not, it needs a helping hand.
The private sector has already volunteered to help the government in this important enterprise. It has been doing its part in the fight against the virus. Many companies have in fact signified their plans to procure vaccines for their employees in order to aid inoculate as many people as possible.
Private companies have high stakes in vaccinating their employees. The sooner the population achieves herd immunity, the sooner the economy fully opens.
COVID-19 vaccination program in the workplace
Employers can have their own vaccination programs. This is part of the management prerogative. It is the freedom to regulate all aspects of employment, including work assignment, working methods, and working regulations.
The exercise of this prerogative is most needed during the pandemic.
Last March 12, 2021, the Department of Labor and Employment (DOLE) issued a labor advisory intended for COVID-19 vaccination in workplaces.
DOLE Labor Advisory No. 03, series of 2021 states that:
Covered establishments and employers shall adopt and implement the appropriate vaccination policy in the workplace as part of their occupational safety and health program, consistent with the guidelines issued by the Department of Health (DOH) and Inter-Agency Task Force (IATF) in accordance with existing laws, rules, and regulations.
Covered establishments refer to all establishments and employers in the private sector that administer COVID-19 vaccines in the workplaces.
The employer needs to set a program or policy in line with the guidelines issued by the DOH and IATF.
Can private entities buy vaccines?
Private entities may buy COVID-19 vaccines. The labor advisory states that:
Covered establishments and employers may procure COVID-19 vaccines, supplies, and other services. They may also seek the support of the appropriate government agencies in the procurement, storage, transport, deployment, and administration of COVID-19 vaccines.
However, employers cannot just procure vaccines “at will” as if they are buying medicines directly from the nearby Mercury Drug.
Under the recent Republic Act No. 11525, in its section 5 in particular states:
Private entities may procure COVID-19 vaccines only in cooperation with the DOH and the NTF through a multiparty agreement, which shall include the DOH and the relevant supplier if COVID-19 vaccine.
This means that a private entity must still coordinate with the DOH in order to procure the vaccines. A trilateral agreement for the procurement of vaccines must involve the private entity, the Philippine government, and the vaccine manufacturer.
How about the costs?
An employer’s vaccination program in the workplace will depend on his financial capability.
Besides the problem of limited supply, the employer has to consider the costs for buying as well as the logistical aspect of carrying the vaccine from the manufacturer until it lands onto the employee’s arm.
The employer cannot pass on to the employee the costs of procuring, transporting, storing, and administering the vaccines in workplaces.
The labor advisory makes clear that employers shall shoulder these costs.
Say no to black market!
Desperate times call for desperate measures.
But that is no reason to buy from those unauthorized sellers or from the black market.
Employers risk the safety of their employees if they patronize these purveyors in the black market.
One must buy only from the COVID-19 vaccine manufacturers in accordance with the multiparty agreement.
Moreover, the vaccines procured must have the necessary regulatory approval from the Food and Drugs Administration (FDA):
“The National Government, as well as LGUs, private entities and the Philippine Red Cross may only procure COVID-19 vaccines that are registered with the Philippine Food and Drugs Administration (FDA) as evidenced by a valid Certificate of Product Registration or which possess an Emergency Use Authorization (EUA).” (Section 6, RA No. 11525).
All current COVID-19 vaccines approved for use in the Philippines only have an Emergency Use Authorization. This means that these are intended for limited use and not yet commercially available in the market.
Any person, besides the COVID-19 manufacturer or its authorized distributor, who sells vaccines in the Philippines, is unauthorized and illegal.
Can an employer compel his employee to take the jab?
The employer may only encourage his worker to take the jab. He cannot compel him to take one, much less impose sanctions in case of refusal.
This is clear from the labor advisory’s “no discrimination or termination policy.”
Covered establishments and employers shall endeavor to encourage their employees to get vaccinated. However, any employee who refuses or fails to be vaccinated shall not be discriminated against in terms of tenure, promotion, training, pay, and other benefits, among others, or terminated from employment. No vaccine, no work policy shall not be allowed.
Immunity from liability
Republic Act No. 11525 protects employers from liability arising from the use or administration of COVID-19 vaccines.
Section 8. Immunity from Liability.- Notwithstanding any law to the contrary, public officials and employees, contractors, manufacturers, volunteers, and representatives of duly authorized private entities who are duly authorized to carry out and are actually carrying out the COVID-19 vaccination Program shall be immune from suit and liability under Philippine laws with respect to all claims arising out of, related to, or resulting from the administration or use of a COVID-19 vaccine under the COVID-19 Vaccination program except arising from willful misconduct and gross negligence.
This is one of the reasons why a private entity needs a multiparty agreement involving the government to procure COVID-19 vaccines. It is the government that will pay the indemnity in case of adverse effects due to the vaccines.
Stay updated
Employers must keep track of the latest updates on COVID-19 vaccinations.
COVID-19 vaccines are still on clinical trials despite regulatory authorizations in the Philippines. From time to time, government agencies such as the IATF, DOH, and FDA will issue regular updates and new guidelines for their use.
In dealing with a new strain of virus that has caused this pandemic, scientists, experts, and governments will constantly provide new findings and update guidelines to help better understand and impose measures against the evolving nature of COVID-19.
