1. What is a pre-employment requirement?
A pre-employment requirement is one that is required to be done as part of the requirements prior to employment. It may be in the form of documentary submission, a medical examination, or an assessment or evaluation of an individual’s knowledge, skills, and competence.
2. Pre-employment requirement as a management prerogative
The employer may set the pre-employment requirements in line with its exercise of its management prerogative. However, there are labor laws and regulations which regulate certain pre-employment requirements, such as whether a requirement may be allowed by the employer, who should pay for any associated costs, and so on.
3. Hepatitis B as a pre-employment requirement
DOLE Department Advisory No. 05, Series of 2010 (“DA-05”), also known as the Guidelines for the Implementation of a Workplace Policy and Program on Hepatitis B, serves as the regulation for anything that concerns Hepatitis B at the workplace.
a. Confidentiality
In relation to Hepatitis B test as a pre-employment requirement, DA-05 provides:
| 2. Confidentiality |
| Job applicants and workers shall not be compelled to disclose their Hepatitis B status and other related medical information. Co-workers shall not be obliged to reveal any personal information about fellow workers. Access to personal data relating to a worker’s Hepatitis B status shall be bound by the rules of confidentiality and shall be strictly limited to medical personnel or if legally required. |
| Part III, Section C, DOLE DA-05 |
Related to the above-cited confidentiality provision, Hepatitis B test result is a personal information about an individual’s health, which is classified as a sensitive personal information under R.A. 10173 or the Data Privacy Act of 2012.
b. Non-discriminatory policy and practices
DA-05 further provides:
| 1. Non-discriminatory Policy and Practices |
| a. There shall be no discrimination of any form against workers on the basis of their Hepatitis B status consistent with international agreements on non-discrimination ratified by the Philippines (ILO C111). Workers shall not be discriminated against, from pre- to post-employment, including hiring, promotion, or assignment, because of their Hepatitis B status. |
| b. Individuals found to be Hepatitis B positive shall not be declared unfit to work without appropriate medical evaluation and counseling; |
| c. Workers shall not be terminated on the basis of the actual, perceived, or suspected Hepatitis B status; |
| d. Workplace management of sick employees shall not differ from that of any other illness. Persons with Hepatitis-B related illness should be able to work for as long as they are medically fit. |
| Part III, Section C, DOLE DA-05 |
In the above cited provision, particularly in No. 1(a), it made mention that there should be no discrimination on workers from pre- to post-employment. The provision covers job applicants as they are those who are covered by pre-employment. Thus, job applicants should not be discriminated during the pre-employment process if they have previously tested for positive for Hepatitis B.
c. Not be declared unfit to work
DA-05 provides:
| 1. Non-discriminatory Policy and Practices |
| b. Individuals found to be Hepatitis B positive shall not be declared unfit to work without appropriate medical evaluation and counseling; |
| Part III, Section C, DOLE DA-05 |
Similarly, employers should avoid and refrain from automatically considering job applicants or employees as unfit to work. As provided in the above-cited provision, there should be appropriate medical evaluation and counseling. This is because it is a medical concern requiring proper intervention of a medical professional, who will be able to make a better assessment of the employee and determine whether or not the employee is fit or unfit for work.
Forms & Templates
⦁ DOLE-prescribed Hepatitis B Workplace Policies and Programs
References
⦁ DOLE Department Advisory No. 05, Series of 2010
