GHH Law Primer No. 4

GHH Law Primer No. 4

You may download the primer here. We reproduce the text below.

            With the implementation of the Luzon-wide enhanced community quarantine (ECQ) to curb the spread of the COVID-19 pandemic, schools all over the region were forced to close. This adversely affected not only the learning of students, but perhaps equally important, the financial well-being of schools. Metro Manila and other areas now shift to general community quarantine (GCQ). As a result, schools must address key legal problems in resuming their operations. While there are ongoing debates as to the efficacy of these strong restrictions, inevitably schools need to adjust to survive. We now examine certain problem areas in the situation of the operation of private educational institutions post-lockdown.

Face-to Face Classes: Health Risks and Liability for Infection

          Provision No. 8 of Department of Education (DepEd) Order No. 007 s. 2020 dated 11 May 2020 entitled School Calendar and Activities for School Year 2020-2021 sets out the guidelines in the opening of classes after the lifting of the MECQ.  To wit:

8. Private schools and state/local universities and colleges (SUCs/LUCs) offering basic education will be allowed to open classes within the period authorized by RA 7797, which is on the first Monday of June but not later than the last day of August, Provided:

 

a. No face-to-face classes will be allowed earlier than August 24, 2020, and from then on, face-to-face classes may be conducted only in areas allowed to open physically.

 

b. They submit in advance the following documents to the DepEd Regional Offices (ROs) for review and monitoring purposes:

 

i. Their school’s plan for compliance with minimum health standards that will be issued by the DepEd, consistent with guidelines of the DOH, IATF, and the OP;

 

ii. Their school’s Learning Continuity Plan showing alternative delivery modes of learning when face-to-face learning is not allowed, which shall constitute compliance with the requirement provided under Item 6 of Annex 3, DepEd Order No. 021 s. 2019; and

 

          iii. Their school’s 2020-2021 School Calendar.[1]

There has been a new issuance from the Inter-Agency Task Force on Emerging Infectious Diseases that now indefinitely suspends face-to-face or in-person classes. 

When a school eventually opens classes and conducts face-to-face classes, students and faculty members are exposed to the risk of being infected by COVID-19 considering that the disease is supposedly easily transmitted through physical contact between persons.  One important question is if they do get infected, can the students and faculty members hold the school liable?

          While there is no specific law yet addressing such a novel situation, the infected students and faculty members might raise the issue of negligence under our law on Quasi-Delicts.  Under the pertinent Civil Code provisions on quasi-delict, whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done.[2]  In order to establish a right to recover from the defendant, the plaintiff must establish by competent evidence the following: [1] Damage to the plaintiff; [2] Negligence by act or omission of which defendant personally or some person for whose acts it must respond, was guilty; and [3] the Connection of cause and effect between the negligence and the damage.[3]  

          As applied in this case, it is thus necessary for the plaintiffs-students and faculty members to establish first that they were infected with the COVID-19 disease.  Second, they must also establish the school’s negligence in implementing minimum health standards as required by law and administrative issuances such as body temperature checks, physical distancing, strict health monitoring, and regular disinfection of school premises.  Third and most important of all, the plaintiffs must competently establish the causal connection between the school’s negligence and their resulting infection to COVID-19 i.e. that they were infected because they were exposed either inside the school premises or in any area that they went to because of the requirement to go to school.  Stated differently, the school’s negligence must be the proximate cause of the plaintiffs’ infection.

          Proving the causal connection is a difficult task. Although this virus is contagious, the contagious period remains to be determined. Recent findings showed that it is contagious even in the incubation period when the patient shows no symptoms. The virus also survives on surfaces for different time periods adding to the incident of transmission. Medical researchers estimate that the incubation period for a COVID-19 infection varies from 2 days to about 14 days (average about 5 days). Thus, determining accurately where a person has acquired the virus may be scientifically improbable.

          Faculty members of public schools may also base their claim on a right provided for under R.A. 4670 otherwise known as The Magna Carta for Public School Teachers.  Section 23 of the said law provides compensation for injuries sustained by public school teachers as a consequence of their employment, and further states that the effects of the physical and nervous strain on the teacher’s health shall be recognized as a compensable occupational disease in accordance with existing laws.[4]

Again, this may be a difficult task because of the same issues stated above regarding the need to prove causal connection.

Private school teachers and staff who are registered with the Social Security System (SSS)  may try to claim through the existing Employees’ Compensation Program (ECP), a government program designed to provide a compensation package to public and private employees or their dependents in the event of work-related sickness, injury or death. They would need to prove that the disease is included in the occupational diseases included in the ECP.

Online Classes: Accessibility to Education and Potential Loss of Employment for Teachers

          Consistent with the principle of preventing infections through elimination of physical contact and interactions among persons, some experts in the field of medicine and education as well as policymakers have strongly pushed for the conduct of online classes.  While this may be beneficial to some, it also puts students who have limited, faulty, or no internet access at all at a harsh disadvantage.  Thus, can these students and their parents sue a school which exclusively conducts classes online?

          This is arguable. It might be construed that such method may be a necessary impairment of the students’ right to quality education.  The Constitution expressly provides in Sec. 1, Article XIV that the State shall protect and promote the right of all citizens to quality education at all levels and shall take appropriate steps to make such education accessible to all.  Hence, a school which exclusively conducts classes online might be violating this constitutional right because as technologically savvy as present Philippine society might seem, a great number of Filipinos still do not have the means to the technology and facilities needed for the conduct of online classes.

          However, this may be different in the case of private schools. When education is delivered in private institutions a contractual relationship is created between the students/parents and the schools where both parties have certain rights and obligations. A student or, in reality, a parent is free to choose which school to enroll in, bearing in mind the rules, regulations, and manner of instruction that a private school may impose. 

          Another possible consequence of exclusively conducting online classes is loss of employment for teachers.  For the conduct of face-to-face classes, a school typically distributes the teaching load for a certain number of students in proportion to the teachers in its roster. Whereas in the conduct of online classes, it might be a logical and practical implication that more students can be taught by fewer teachers because classes can be viewed simultaneously online.  Thus, in a scenario where a number of teaching personnel are laid off due to the existing demands and circumstances of education, can the school be held liable for illegal termination?

          The scenario contemplated above is akin to the concept of Redundancy under our Labor Code.  Redundancy exists when the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise.[5]  Philippine jurisprudence further instructs us that while a declaration of redundancy is ultimately a management decision in exercising its business judgment, and the employer is not obligated to keep in its payroll more employees than are needed for its day to-day operations, management must not violate the law nor declare redundancy without sufficient basis.[6]

          Being one of the authorized causes for termination of employment under Art. 298 of the Labor Code, a termination of a teacher’s employment due to redundancy is valid provided that the school complies with the following jurisprudential requirements: (1) written notice served on both the employees and the Department of Labor and Employment at least one month prior to the intended date of retrenchment; (2) payment of separation pay equivalent to at least one month pay or at least one month pay for every year of service, whichever is higher; (3) good faith in abolishing the redundant positions; and (4) fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished.[7]

Seniority Rights: Problem Areas in Labor for Senior Citizen Faculty

          Among the most vulnerable to COVID-19 are senior citizens, or those persons aged 60 and above.  Can a school be held liable for only employing the services of young faculty members in order to protect teaching staff who are senior citizens from being infected?

          R.A. 10911 otherwise known as the Anti-Age Discrimination in Employment Act provides that while it is generally unlawful for an employer to set age limitations in employment, the setting of an age limitation is not unlawful when age is a bona fide occupational qualification reasonably necessary in the normal operation of a particular business or where the differentiation is based on reasonable factors other than age.[8]

          Applying the said provisions in the contemplated scenario above, it might not be unlawful for the school to only employ the services of young teachers because the protection of the health and well-being of senior citizens is the primordial consideration and not merely the latter’s age. 

International Obligations

It is important to note that the World Health Organization (WHO) has stated that “deciding to close, partially close or reopen schools should be guided by a risk-based approach to maximize the educational and health benefit for students, teachers, staff, and the wider community, and help prevent a new outbreak of COVID-19 in the community.”

Further the WHO has also mentioned that as protective school measures are applied, it is important to monitor a range of factors such as:

      Effectiveness of tele-schooling interventions: o

·       How well has the school been able to develop tele-schooling strategies?

·       What proportion of children were reached?

·       What is the feedback from students, parents, and teachers?

      The effects of policies and measures on educational objectives and learning outcomes.

      The effects of policies and measures on health and well-being of children, siblings, staff, parents, and other family members.

      The trend in school drop out after lifting the restrictions.

Perhaps it is equally important to determine if the guidelines issued by our government is responsive to the mandate issued by the WHO than just determining if these guidelines stop the spread of the virus.


[1] Emphasis supplied.

[2] Art. 2176, Civil Code.

[3] Vda. de Gregorio v. Go Chong Bing, G.R. No. L-7763 (December 2, 1957).

[4] Sec. 23, RA 4670.

[5] Wiltshire File Co. Inc. v. National Labor Relations Commission, G.R. No. 82249 (February 7, 1991).

[6] General Milling Corp. v. Viajar, G.R. No. 181738 (January 30, 2013).

[7] Asian Alcohol Corporation v. National Labor Relations Commission, G.R. No. 131108 (March 25, 1999).

[8] Section 6 (a), R.A. 10911.

Garcia Habacon and Han is a law firm in Quezon City, Metro Manila, Philippines.