May an employer dismiss an employee who acquired coronavirus?

Atty. Noel Atienza
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In order for an employer may terminate an employee if the following requirements are complied with to wit:

1. His continued employment is prohibited by law

2. Is prejudicial to his health as well as those of his co-workers

3. There is a certification by a competent health authority that it is of such a nature or such a stage that it cannot be cured in 6 months even with medical treatment.

COVID-19 could be fatal, but this happens rarely. According to WHO,82% of infected patients will have mild presentations, 15% will have severe manifestations, and only 3% will be critical. As mentioned before, older people, people with compromised immune systems, and people with pre-existing medical conditions, such as diabetes and heart disease, are more prone to fall severely ill with the virus. Around 2% of people infected with the disease has died.

Using available preliminary data, the median time from onset to clinical recovery for mild cases is approximately 2 weeks and is 3-6 weeks for patients with severe or critical disease.

Applying the same to the question at hand, it would appear that termination of employee due to coronavirus is dependent on the health conditions and age of the employee and most important is the mandatory requirement for the issuance of certification by a competent health authority that it is of such nature that it cannot be cured in six months even with medical treatment.

In the absence of certification by a competent health authority, the termination of an employee is illegal.

Another question might arise that a company medical doctor may issue the said certification? The answer is in the negative since the law is very clear certification issued by a competent health authority.

Assuming the termination has complied with all the requirements provided for by law nevertheless, the dismissed employee due to health reason is entitled to separation pay.

Separation Pay must be at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year.

Note that if the disease can be cured within 6 months, the employer can ask the employee to take a leave of absence.

When the employee returns to good health, he should be reinstated to his former position.

The Supreme Court has held that: The requirement for a medical certificate under Article 284 of the Labor Code cannot be dispensed with; otherwise, it would sanction the unilateral and arbitrary determination by the employer of the gravity or extent of the employee’s illness and thus defeat the public policy on the protection of labor.

In 2014, it ruled in Deoferio vs. Intel [G.R. No. 202996], that: In Sy v. Court of Appeals and Manly Express, Inc. v. Payong, Jr., promulgated in 2003 and 2005, respectively, the Court finally pronounced the rule that the employer must furnish the employee two written notices in terminations due to disease, namely: (1) the notice to apprise the employee of the ground for which his dismissal is sought; and (2) the notice informing the employee of his dismissal, to be issued after the employee has been given reasonable opportunity to answer and to be heard on his defense.

Thus, due process in the form of the two-notice rule has since applied to terminations for health reasons.

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