Impact of COVID19:  Guidelines in the Treatment of Seafarers in Light of 120/240 Day Rule

Background

The President of the Philippines has placed the entire Luzon (the largest and most important island of the country where the capital city is located and where the manning agents hold their offices and the company-designated physicians have their hospitals and clinics) under the so called “enhanced community quarantine” (ECQ) due to COVID19.

While under the state of ECQ, the Supreme Court physically closes all courts nationwide, government offices like NLRC and NCMB have suspended hearings, the POEA is unable to process contracts of seafarers, whether manually or in-house, and the most critical during these extraordinary times, is the suspension of public transportation. With the suspension of public transportation, employers in the private sector were forced to close down their operations except those in banking, food, retail and health. Domestic and international travel restrictions are now in force, although Overseas Filipino Workers are still allowed to fly out of the country.

The “work from home” scheme has been adopted by the private sector during the duration of the ECQ. With the implementation of the said scheme, the company-designated physicians informed manning agents that seafarers who are undergoing treatment on an “out-patient” basis cannot report to their clinics for the duration of the ECQ and are advised to have their treatment at the clinic/hospital near the place of their residence, where possible / appropriate. Seafarers, however, are required to send the medical reports issued by the doctors who provided the interim treatment to the company-designated physicians (CDP) via electronic mail. On the basis of the said reports, the CDP will evaluate the seafarers and accordingly, send updates to the manning agents/principals.

Effect of the ECQ on the 120/240 Day Rule

Under the present state of jurisprudence particularly in the decision of the Philippine Supreme Court in the case of Arnel T. Gere vs. Anglo-Eastern Crew Management Phils., Inc., et. al., G.R. No. 226656, April 23, 2018, the shipowners, to avoid being held liable for the maximum disability benefits provided under the POEA SEC or the applicable CBA, must strictly abide with the following rules:
 

1.     The company-designated physician must issue a final medical assessment on the seafarer’s disability grading within a period of 120 days from the time the seafarer reported to him. 

2.     If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer's disability becomes permanent and total.

3.     If the company-designated physician fails to give his assessment within the period of 120 days with a sufficient justification (e.g., seafarer required further medical treatment or seafarer was uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has sufficient justification to extend the period.

4.     If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer's disability becomes permanent and total, regardless of any justification.

 
In this regard, the company-designated physician is mandated to issue a medical certificate, which should be personally received by the seafarer, or, if not practicable, sent to him/her by any other means sanctioned by the Rules of Court.
 
Indisputably, the enforced travel restrictions effectively force the CDP to suspend work and prevent the seafarers from reporting regularly to the CDP throughout the duration of the ECQ.  Shipowners are now reviewing their options vis-à-vis their desire to continue providing medical attention to their seafarers without however jeopardizing their position against the strict application by the courts of the 120/240 day rule.

Safety Measures

Shipowners cannot predict how the Philippine labor courts will consider the effect of COVID-19 in their interpretation of the 120/240 day ruling. To guard against the application of the State policy of favoring labor in case of doubt, shipowners may consider adopting the following guidelines in providing medical attention to their seafarers:
 

1.     The CDP must still issue a final assessment prior to the end of the 120 day period. 

2.     If treatment is justified to be extended, the CDP must issue a written report stating his justifications for extending the period of treatment.

3.     If treatment is extended, a final assessment must still be issued before the lapse of 240 days. Shipowners must check all cases approaching 240 days and take immediate action regarding seeking final assessment.

 
Arguably, during the implementation of the ECQ, the strict observance of the 120/240 day period will not be beneficial to the seafarer as it will limit or shorten the period of his treatment because it will lessen the frequency of the visits that he can make to the CDP. If the Shipowners wish to continue providing medical attention to the seafarers by extending the period of treatment by another 30 days or even more depending on when the ECQ will be lifted, the shipowners may be protected though the following precautionary measures:
 

4.     If the seafarer agrees, the seafarer will be required to make a written request to the shipowners that his treatment be extended up to such number of days that the Island of Luzon is under ECQ. The request must be handwritten by the seafarer in the language or dialect for which the seafarer is very much familiar with. 

5.     The medical report to be issued by the CDP during the “extended” period must contain a statement that treatment will be continued upon written request of the seafarer.

The shipowners may alter, modify, improve or adopt the above guidelines in its entirety depending on how the guidelines may best possibly protect their interests.

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