Can Your Boss Make You Go to Work During a Calamity?
We’ve seen this meme often enough during typhoons.
The government can't suspend work as easily as governors suspend classes. The private sector doesn't work that way. While the government can call the shots for all of its employees, what does this mean for the private sector? Who do they turn to during these situations, and more importantly, can they force employees to go to work even during natural disasters, like typhoons, floods, and volcanic eruptions? (All of which have occurred in 2020).
The question is: Can the President supersede the authority of private employers in favor of everyone’s safety?
The answer is as hazy as the ash in the sky. According to lawyer Vincent Aureus, he has yet to encounter a law that directly allows the government to do this. “The private companies are not government-owned and thus, as a general rule, the latter cannot decide for them. To do so would likely be tantamount to a takeover—though in a limited sense—of said company because management prerogative regarding daily operations is being replaced by government decisions,” he said.
There’s also not a lot of precedent to support a total cancellation. Aureus cites Memorandum Circular 33A from August 7, 2012. But the results were also recommendatory. “Further, there were remarks from then Spokesperson Lacierda to the effect that if the company insists that employers go to work (meaning the company may disregard the suspension of work issued by Malacanang for the private sector), the employer must ‘(1) be responsible for your safety; and (2) to give premium pay.’ In other words, the cancellation of work in the private sector was, in effect, still recommendatory.”
In 2013, in the wake of Typhoon Yolanda, the government issued a Labor Advisory merely to advise private companies to compensate employees who worked despite the typhoon with their usual salary while those who didn’t work could utilize either paid or unpaid leave allowances. Companies, however, were required to ensure the safety of their staff by providing food, transportation, protective equipment and any other logistical assistance needed.
Certain conditions must be met for the President to take over a private company. Aureus recalls Section 17 of Article 12 of the 1987 Constitution which says: “In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.”
Another piece of legislation that’s gone viral refers to RA 11058 or “An Act Strengthening Compliance with Occupational Safety and Health Standards (OSHS) and Providing Penalties for Violations Thereof.” This law, however, does not refer to specifically to the effects of natural calamities, but to the safety risks involved in more hazardous occupations.
Aureus opines that, although laws regarding labor are generally construed in favor of labor, it may be a bit of a stretch to apply the RA to the Taal situation. "That law protects against bad practices of companies regarding occupation-specific risks and hazards. For example, the company requires employees to handle radioactive material but doesn’t provide safety gear or equipment, that’s more of the kind of risk that the law protects against."
"Further, in any case, even assuming that it is applicable, the RA does not allow the employee to unilaterally decide that he won’t go to work, since there must be a finding by DOLE that imminent threat exists," he added.
Under Articles 89 and 92 of the Labor Code, employers may compel workers to render overtime work (work beyond eight hours a day) and to work on their rest day under extraordinary circumstances, such as, during national or local emergency, and when it is necessary to prevent loss of life or property, and in case of imminent danger to public safety, due to actual or impending emergency, caused by flood, typhoon, earthquake and other disasters.
In fact, the Labor Code may actually allow employers compel an employee to work even during times of calamities.
A new Labor Advisory, issued January 13, 2020, "Suspension of Work in the Private Sector by Reason of Natural or Man-Made Calamity," reiterated as much. The decision to cancel work is left to "management prerogative in coordination with the safety and health committee or safety officer." However the new issuance notes that there will be "no liability in case of failure or refusal to work."
According to the advisory, "employees who fail or refuse to work by reason of imminent danger resulting from natural or man-made calamity shall not be exposed to or subject to any administrative sanction."
There you have it. Use your leaves wisely. Assess the situation. Pay attention to your office bulletins. You never know when a volcano will act up or when a typhoon will flood your city.