I have a small parlor, with three manicurists working for me. One of my manicurists has been complaining, since last year, of rashes on her skin. I have advised her several times to see a doctor but she simply dismisses the idea because she says it might be costly. Just this year, her rashes seemed to have gotten worse and she would absent herself frequently. I offered to shoulder the costs for laboratory tests and doctor’s examination. So, she went to see a skin specialist at the government hospital in our area. It turned out that she has a form of cancer. Now, I am thinking of terminating her employment because of her illness. I think it will benefit both of us as she will have time to recuperate and, as for me, I can find another manicurist who will replace her. I just want to know if it is legally possible for me to do this? Please advise.
There is no question that an employer may terminate the contract of employment if the employee is suffering from any disease. But we wish to emphasize that such termination on the basis of the employee’s disease must only proceed if it is clearly shown that continued employment of such employee is prohibited by law or is prejudicial to his health as well as to the health of his co-employees. It is also essential that there be a certification issued by a competent public health authority stating that the disease of the concerned employee is of such nature or at such a stage that it cannot be cured within six months even with proper medical treatment. In addition, the employee must first be given notice of his/her impending termination and his/her side should be heard. If the employer is keen on terminating the services of the employee, in consonance with the above-mentioned criteria, then he/she must again give a written notice to his/her employee of such decision for termination (Article 284, Labor Code of the Philippines in relation with Book 6, Rule 1, Section 8, Labor Code Implementing Rules and Regulations).
Should the employee be terminated, he/she must be paid a separation pay equivalent to at least one-month salary or to one-half month salary for every year of service, whichever is greater, and a fraction of at least six months shall be considered as one whole year. (Id.)
It bears stressing, though, that the employee should not be terminated if his/her disease can be cured within six months. Instead, he/she shall be asked to take a leave of absence. Once his normal health is restored, the employer must immediately reinstate such employee to his/her former position (Book 6, Rule 1, Section 8, Labor Code Implementing Rules and Regulations).
In your situation, it is clear that your employee sought medical assessment from a government physician and it was concluded that she has a form of cancer. But it is unclear as to whether her disease is prohibited by law or is prejudicial to her health as well as to the health of her co-employees. Equally important to note that there appears to be no certification that was issued by the examining physician. Taking all of these into consideration, we believe that you cannot, as of yet, validly terminate the services off your employee. You must comply with all the standards set by our labor laws.
To further enlighten you, our Supreme Court has held:
“x x x The rule is explicit. For a dismissal on the ground of disease to be considered valid, two requisites must concur: (a) the employee suffers from a disease which cannot be cured within six months and his continued employment is prohibited by law or prejudicial to his health or to the health of his co-employees, and (b) a certification to that effect must be issued by a competent public health authority.
In the present case, there was no proof that Payong’s continued employment was prohibited by law or prejudicial to his health and that of his co-employees. No medical certificate by a competent public health authority was submitted that Payong was suffering from a disease that cannot be cured within a period of six months. In the absence of such certification, Payong’s dismissal must necessarily be declared illegal. x x x” (Manly Express, Inc. vs. Payong, Jr., G.R. No. 167462, October 25, 2005; ponente: former Associate Justice Consuelo Ynares-Santiago).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to firstname.lastname@example.org.