COVID-19 VACCINATION IN THE PHILIPPINES
IS IT A CHOICE or AN OBLIGATION?
BY ATTY. HERBERT B. HERNANE
AND ATTY. DEO PAOLO MARCIANO V. HERMO
The Philippine government’s implementation of the National COVID-19 Vaccination Program brings a plethora of legal considerations. Inevitably, not all Filipino citizens are onboard with the vaccination program due to fear of possible side effects, religious or personal beliefs, or other considerations. This becomes relevant as government restrictions are loosened, businesses begin to reopen, and the country begins acclimatizing toward the “new normal,” which largely depends on the success of the government’s vaccine program and the attainment of herd
immunity among Filipino citizens.
With these in mind, we shall discuss the current vaccination policy in the Philippines in relation to employment requirements. We shall also clarify if the failure or refusal to get vaccinated against COVID-19 could be a ground for arrest or criminal prosecution and if
parents can refuse the vaccination of their minor children.
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Can employers require their employees to get the COVID-19 vaccine? If yes, are there exemptions?
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No, employers cannot require employees to get inoculated against COVID-19.
There is no law or issuance from the Philippine government on mandatory vaccination. However, Republic Act No. 11525, or the COVID-19 Vaccination states that vaccination is not a requirement for employment because it provides that vaccine cards, which are issued upon
vaccination “shall not be considered as an additional mandatory requirement for educational, employment, and other similar government transaction purposes.”
The Department of Labor and Employment (DOLE) adopted a similar rule for the private sector in Labor Advisory No. 03-2021. Under Article III thereof, a “no vaccine, no work policy” shall not be allowed, and an employer cannot discriminate against an employee for purposes of tenure, promotion, training, pay, and other benefits, on the ground that said employee refuses or fails to get vaccinated. Moreover, the employer cannot terminate an employee based on this ground. Otherwise, the employer may be charged with illegal termination.
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Can someone be arrested for not taking the COVID-19 vaccine?
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No, a person cannot be arrested for not being inoculated against COVID-19. An arrest is defined as “the taking of a person into custody in order that he may be bound to answer for the
commission of an offense.” Hence, an arrest presupposes that there is probable cause that an offense or crime has been committed to justify the actual restraint of a person to be arrested, or his submission to the custody of the person making an arrest.
Currently, the failure or refusal to get vaccinated against COVID-19 is not a crime because there is no law which criminalizes it and provides a penalty for its commission. This is pursuant to the established legal principle that there is no crime where there is no law punishing it.
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Should there be a vaccine someday for children, do parents have the legal right to keep their children from being vaccinated against COVID-19?
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Yes, parents may refuse to have their children vaccinated against COVID-19, absent the determination of any compelling state interest.
The mandatory vaccination of minors under the Philippine government’s COVID-19 national vaccination program involves the consideration of whether the government can override parental authority under its role as parens patriae (parent of the nation), as minors are generally considered under the law to be incapable of giving consent.
Philippine legislation is replete with legal basis for the recognition of the primacy of the Filipino family and natural authority and duty of parents to their children and other family matters. The 1987 Constitution acknowledges the “sanctity of family life” and the duty of the State to “protect and strengthen the family as a basic economic social institution.” Further, the 1987 Constitution provides that parents have the natural and primary right and duty “in the rearing of the youth for civic efficiency and the development of moral character,” that the State has the duty to defend “the rights of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood” and “the right of families or family associations to participate in the planning and implementation of policies and programs that affect them,” among other provisions. These provisions are a manifestation of the State recognition of “decisional privacy inherent in every family.”
In turn, the Family Code provides that parental authority shall include “the caring for and rearing of such children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.” Hence, parents have the duty “to enhance, protect, preserve and maintain their physical and mental health at all times.”
Nevertheless, the concern and duty over the welfare of children is shared between the parents and the State. The primacy of family life and parental authority are not immune from State intervention, and the government is constitutionally authorized to regulate these matters when circumstances permit under the doctrine of parens patriae. The doctrine of parens patriae or “parent of the nation,” makes reference “to the inherent power and authority of the state to provide protection of the person and property of a person non sui juris (lacking the legal capacity to act on his or her own behalf),” and provides that “the state has the sovereign power of guardianship over persons under a disability. Thus, the state is considered the parens patriae of minors.” Hence, the State “shall promote and protect their physical, moral, spiritual, intellectual, and material wellbeing,” and shall defend “the right of children to assistance,
including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development.”
The demarcation between parental authority and the State as parens patriae is a complex concept which depends on the circumstances of each case. Notably, in the landmark case of Imbong vs. Ochoa, the Supreme Court held that “only a compelling state interest can justify a state substitution of their parental authority.” Hence, absent a compelling state interest, the State cannot override parental authority when it comes to the care of minor children.
On a related note, the assent of minors to medical procedures is a developing concept in the field of medicine, and there is currently a scarcity of Philippine legislation regarding it. To implement the concept of the Evolving Capacities of the Child under Article 5 of the Convention
on the Rights of the Child, Republic Act No. 11166 or the Philippine HIV and AIDS Policy Act, the State has lowered the age of consent for voluntary HIV testing to 15 years old. However, no similar legislation has been passed with respect to vaccination.
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Afterword
The Philippine government adopted the policy of encouraging Filipino citizens to get vaccinated against COVID-19, as opposed to mandatory vaccination. As previously mentioned, current legislation prohibits mandatory vaccination, both in the public and private
sectors.
Nevertheless, governments of other countries have implemented mandatory vaccination to varying extents, particularly with respect to healthcare workers. In the United States of America, there may be legal basis to justify the imposition of mandatory vaccination by the government.
In Jacobson v. Massachusetts (197 US. 11 [1905]), the US Supreme Court held that “it is within the police power of the state to enact a compulsory vaccination law” and the decision has been cited in justifying public health measures, such as wearing face masks in public during the COVID-19 pandemic. Theoretically, the Philippine government may adopt similar legislation pursuant to its police power. However, such legislation has not been drafted and shall be subject to legal challenges, taking into consideration modern developments in health, family, and
other relevant legal principles.
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Atty. Herbert B. Hernane is a junior partner at the Gerodias Suchianco Estrella
(GSE) Law Firm. His primary practice areas are civil, commercial, criminal, and
labor litigation. He received his BS Economics degree from UST and obtained
his Bachelor of Laws degree from San Beda College.
Atty. Deo Paolo Marciano V. Hermo is a junior associate at the GSE Law
Firm. His primary areas are corporate organization and restructuring, real estate
transactions, and estate planning. He completed his BS Chemistry degree at
UP Diliman