Wrongful death | The Manila Times
I RECEIVED a message from a reader who reacted to my column last Saturday, June 19. The person pointed out that I may have misread Memorandum Circular (MC) 18 issued by the Civil Service Commission (CSC) on work-from-home arrangements for government employees.
Let us revisit the policy. Item 3.1, letter c of MC 18 stated that, “Employees who are below 21 years old and those who are 60 years old and above, as well as those with immunodeficiency, comorbidities or other health risk, and pregnant women and are residing in areas placed under enhanced community quarantine (ECQ), MECQ, GCQ and MGCQ shall be under work-from-home arrangement except when their services are indispensable under the circumstances or when office work is permitted. The said work arrangement shall also be made available to those living with the aforementioned persons and living in areas under ECQ, MECQ and GCQ.”
The person who sent me a message pointed out the clause “except when their services are indispensable under the circumstances or when office work is permitted.” It is here that heads of government agencies can allegedly require their employees to report for work even if they are covered by the mandate to implement work-from-home arrangements as enumerated above.
Indeed, there are two exceptions. On the first exception, the key word that can be the ground for an agency head to compel a covered person to report for work is “indispensable.” That is, there is no other person who can perform the job, or that the job needs to be done physically in person, and that there is no other alternative modality, and failure to perform it would seriously undermine the operations of the office. The bar here is set high because what it will negate is a medical condition of people that are otherwise vulnerable to Covid-19 infection as established by scientific criteria.
It is therefore grossly inexcusable for a government agency to order all its workers to report for duty under this premise and to suspend work-from-home arrangements. It is simply unrealistic, even grossly abnormal to assume that all services of these employees rise to the level of being indispensable and that all of them cannot be possibly performed under work-from-home arrangements.
And yet, that is what many government agencies have done contrary to the intent of MC 18. And now, someone is using the violation as a basis for excusing this by pointing out that since office work is now permitted, the requirement to adopt work-from-home arrangements for those covered individuals can also be lifted because there is this clause “except… when office work is permitted.”
I am not a lawyer, but my field in political science requires me to delve deep into the reading and interpretation of policy texts. And here, to argue that this clause has provided blanket authority to agency heads to require all of their employees to report physically and suspend work-from-home arrangements is simply a patently gross misreading of the circular.
First of all, an enumeration in any policy should always be interpreted in terms of the principle that each of the items is of equal gravity or level. Certainly, putting “office work is permitted” on a list that also contains the extraordinary condition of “indispensability of service” would give us the idea that the former should never be seen as something that can be interpreted lightly. Whatever condition that would lead to permitting office work should rise to the level equivalent to that, which would lead to a derailment or undermining of the operations of the office, which is the presumption when employees are required to report because their services are indispensable.
More importantly, however, is the fact that as constructed, item 3.1 letter c of MC 18 mandates work-from-home arrangements as the policy, indicated by the word “shall” for those covered employees as enumerated. Thus, the correct interpretation of the clause “except when office work is permitted” is that it applies when it is the employee itself who asks to be exempted, and has voluntarily sought permission to be allowed to report for work, and for which a permission should be issued by the head of agency. In short, it is not the agency that will require employees covered under item 3.1 letter c to physically report for work and for them to seek permission to work from home. What is required by the policy is for agencies to implement work-from-home arrangements for them, except when they seek permission to be allowed to perform office work and for which they have to seek permission.
This is not what happened in one instance of an employee who I personally know, but will not name out of respect for the privacy of her family. This employee suffered from a host of comorbidities, but was required to report for work in January. The employee requested to be allowed to work from home but unfortunately her request was denied. Instead, she was asked to file an application for leave if she wished not to report for work, since she was allegedly not exposed to Covid-19 and was not showing any symptoms.
Unfortunately, she contracted the disease and just recently passed away.
Some people claim that she contracted the disease not in her place of work, but in the place where she lives. This employee is a resident of Laguna. It is still a fact that had the agency followed strictly MC 18, she could just have worked from home in her hometown and would still be alive today. All that was needed from her was a medical certification of her comorbid condition.
And now, we have an employee who died because an agency did not correctly interpret the wording of a policy and thus failed to implement it with lethal consequences.
If I were the relative of this employee, I would sue for civil damages due to wrongful death.