Acceptable job-saving measures

In anticipation of the challenges that employers are expected to face when the lockdown is lifted and business operations are allowed to resume, the Department of Labor and Employment (Dole) issued Labor Advisory 17-2020 titled “Guidelines on employment preservation upon the resumption of business operation.”The circular reiterates the minimum health standards laid down by the government agencies tasked to manage the new coronavirus disease (COVID-19) pandemic that employers have to follow for the protection of their employees’ health.

Aware of the fact that businesses adversely affected by the pandemic may have to terminate the services of some of their staff or cease operations, the circular proposes several alternative work schemes to avoid those situations from happening.

For starters, employees may be transferred to another branch or outlet of the same employer, or assigned to other functions or positions in the same or other branches or outlets of the employer.

These arrangements are ideal because the employees would simply undergo a change in workplace or work assignment without any diminution in pay or compensation benefits.

For businesses engaged in highly technical activities or whose employees have gained certain skills that are difficult to replicate, these schemes would enable them to maintain competitive in their field.

If none of those measures is workable, the circular suggests the following courses of action: (a) reduction of normal workdays per day or week, (b) job rotation alternately providing workers with work within the workweek or the month, (c) partial closure where some branches of the establishment continue to operate while other branches are closed, and (d) other feasible work arrangements that take into account the peculiarities of the business.

Since the circular does not say that these schemes are alternative in character, i.e., the availment of one excludes the others, the employer is not barred from engaging in two or more of them to keep the business going.

It is silent, however, on the effect on the salary of the affected employee in the situations mentioned.

If the circular’s objective is to stave off the dismissal of employees or cessation of business, it is reasonable to assume the employee shall not be entitled to compensation on the days he or she is not working due to the reduction of his or her working hours or closure of a branch.

In effect, it will be “no work, no pay” on the days the employee is not working, unless the employer, in a gesture of generosity, decides otherwise.To require the employer to continue to pay the employee’s salary despite his or her not reporting for work would defeat the purpose of the work schemes. The employer might as well close down if it is obliged to do business as if the pandemic never happened.

These alternative work schemes are meant to be temporary. They can be adopted by the employer only for as long as the public health crisis exists. When the government declares that the medical scourge that started in China has been licked or its spread already controlled, the employers must go back to the employment arrangements in force prior to the pandemic.

In addition to alternative work schemes, the circular allows employers and employees to voluntary agree in writing on the temporary adjustment of the employees’ compensation benefits provided for in employment contracts, company policy or collective bargaining agreement (CBA).

The adjustment, however, shall not exceed six months or the period agreed upon in the CBA, if any. After that period, the two parties shall review their agreement and decide on whether or not to renew it.

In all the actions enumerated above, the employer is required to report their adoption to the Dole regional office that has jurisdiction over its operation.

With the circular already in force, the ball is now in the court of the employers. It is up to them to follow its advice on how to keep their businesses above the water and, in the process, sustain the lifeline of their employees. INQ

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