In the coming days, many workplaces will re-open in accordance with the guidelines of the Ministry of Health. This partial re-opening in the midst of the ongoing COVID-19 pandemic creates uncertainty about employers’ obligations and workers’ rights. Elad Morag, a lawyer specializing in labor law, explains the situation and sheds light on these issues.
Before getting into details, Morag lays some groundwork: "We are trying to find solutions to new questions by using the legal precedents that we already have. We don't have laws that directly address situations created as a result of a crisis like the Corona pandemic, and we don't yet have a court ruling that enables us to accurately predict what the law would say in each case,” he said.
"In the end, we are talking about basic legal obligations,” he adds. "One of which is the obligation to fulfill contracts in good faith, and that’s on workers as well as employers. It’s also very case dependent. Employers need to understand that they can't demand their workers to risk their lives at work, and workers need to gather strength to help the employers recover from this very difficult period."
Can workers who are at higher risk from Coronavirus, whether because of their age or health conditions, refuse to return to work? Are they protected from being fired?
"The employer and the employee should have a conversation and see if there's a way to adjust the working conditions to not endanger the worker. If that’s not possible, they need to consider if the employee could work from home."
"Both sides have to be flexible here. As a last resort, you can consider using vacation days, or going on unpaid leave. Firing employees should be the last resort, and I assume that an employer who reaches for that as their first option, will be in the position of explaining why they didn't examine all the other options."
What about parents of small children who are returning to work part-time, many of whom will not be able to return to full-time work? Does the law protect them in any way?
"It's clear that a parent with small children will have a harder time being available now than before the crisis, especially if they don’t have childcare coverage."
"In this case the employer is expected to understand the situation, and the worker is expected to make the effort to do their job to the best of their ability. Both parties can find solutions in this situation — even partial solutions, like working from home, or coming into the office at different hours than they’d typically work. In families where one parent is doing the bulk of the childcare, I’d recommend that both partners reconsider the situation in order to divide that burden more equally."
What if management decides to bring back only some employees? Doesn’t this just create opportunities for them to discriminate, or to fire people arbitrarily?
"If management makes decisions about which workers to bring back according to applicable and transparent criteria that are relevant to those employees’ jobs, they can avoid creating a discriminatory situation. Assuming that a workplace is re-opening at half capacity, it makes sense that they’ll only call up the workers who are relevant to the work that’s actually happening. On the other hand, we would expect that the workplace would consider the factors we mentioned earlier: who’s more likely to be exposed to risk as a result of returning to work, and perhaps also who will be more harmed financially as a result of continuing to staying home – who doesn't receive unemployment allowance, things like that."
What about workers who use public transportation to get to work and don’t currently have that option? Are employers obligated to come up with solutions?
"Israeli law doesn't require employers to pay for transportation to the workplace, if there’s no way to get there on public transportation. On the other hand, an employer can't realistically expect employees to buy a car in order to get to work if until this point they haven’t been driving to work.”
"To my understanding, the intention is that the public transportation system will gradually return to full capacity, because otherwise the economy can't really function. Until that happens, both employers and employees need to find solutions. Some of those solutions may be more costly for the employer, some may demand flexibility from workers, some may mean that it takes longer for workers to arrive to their jobs. It’s important to remember that this is all temporary."
How is my employer obligated to protect my health? Who determines what counts as a safe workplace?
"In the eyes of the law, employers are responsible to ensure a healthy and safe work environment for their workers. The minimum standard, in my eyes, would be fulfilling the guidelines outlined in the emergency regulations and the instructions from the Ministry of Health. Among other things, that means taking people’s temperature, having people get a health declaration, limiting the number of people in the room and having everyone wear masks. These guidelines change all the time, they’re updated weekly."
"I’d emphasize that employers need to be very aware of the situation so that they can act quickly and solve problems in real-time .I’d also urge them to create an open door policy so workers will feel comfortable coming to their employer when problems arise."
What if I prefer not to come back to work, even if it means I’ll be fired? If I’m eligible to receive unemployment benefits, would I also receive those benefits for the period of time I was on unpaid leave?
"I would advise people to seriously consider staying in their current job if at all possible. The coming period will not be brimming with new and attractive jobs. It’s in all of our interests to strengthen our workplaces. Now more than ever, employers need an experienced and skilled workforce, and they need to be able to invest their energy in rehabilitating their businesses and not in recruiting and training new workers."
"At the moment, to the best of my understanding, unemployment benefits are calculated from the date the worker goes on unpaid leave. Since people can claim unemployment benefits for a maximum of six months out of every year, if they choose to claim benefits now that means they will not be able to claim the full six months later on in the year. It’s also dependent on age and other factors, so I would recommend trying to stay updated with the official announcements."
So you’re saying that it’s worth it for employers and employees to reach a compromise?
"In unionized workplaces, the expectation is that the employer and the employees’ committee will work together to implement many of these accommodations. The committee is expected to safeguard workers' rights, but also to be flexible and understanding of this unprecedented situation. In addition, the employees' committee is also a resource for workers who fall between the cracks or who need help with the health and safety guidelines. The committee will be their best advocate."