Israel: Preparing Your Workplace for a Return to Normal
More will be told of the COVID-19 crisis and the changes it brought to Israeli labor relations. In the meantime, we have gathered brief guidelines on a return to normal:
Is terminating employees on unpaid leave due to the COVID-19 crisis permissible?
- This question has yet to be considered in Labor Court case law. Therefore, it has no conclusive answer. During unpaid leave, the employment agreement between the parties is suspended. Therefore, on the technical legal level, the answer to this question is in the negative. One must first return the employees to work and only after hold a termination hearing. The employees’ termination will thus be subject to the outcome of this hearing process. However, the technical aspects of labor law do not provide a proper answer for extreme circumstances, such as businesses that collapsed during the crisis and cannot return employees to work. Since there is no conclusive answer to the question, we suggest considering each termination on a case-by-case basis, and, as always, operating with transparency and fairness toward employees.
Must a pre-termination hearing be conducted during the COVID-19 crisis?
- Here, the answer is clear—a hearing must be held. Of course, technical constraints (lack of sufficient transportation or concern for contagion) may change the way the hearing is held. For instance, a hearing may be conducted via video conference or telephone call. However, the regular rules as to holding a hearing stand as they were before the crisis—an employee must be given notice of the hearing, the reason for considering termination must be explained, sufficient time must be given to prepare for the hearing, and the employee must be permitted to raise arguments without limits. Afterwards, the arguments must be considered on their merits and the decision must be made based on all circumstances.
- At this time, too, it is impermissible to terminate pregnant women, as well as employees undergoing infertility treatments, in the process of adoption or surrogacy, returning from maternity and parenting leave, and in the thirty days after performing military reserve duty exceeding two consecutive days, without the approval of the Ministry of Labor or the Ministry of Defense.
- We remind you that a hearing cannot be held for an employee utilizing sick leave days, nor can you terminate an employee during such days. Neither is it permissible to terminate an employee quarantining at home over concern for contagion.
How can employers handle an employee refusing to return from unpaid leave for personal reasons?
- Unpaid leave is a contractual matter. At the end of the unpaid leave, an employee must return to work. Should the employee refuse to do so (for health reasons, childcare reasons, and so forth), employment may be terminated, pursuant to a lawful hearing procedure. However, it is advised to exercise discretion and fairness in the labor relations, and as much as possible to consider alternatives, such as continued work from home, particularly for employees who are at risk.
Are employees over 67 required to return to work?
- In light of the amendment to the regulations, going forward, all employees may return to work as usual, including employees over 67 years old. It is important to note that employers in the fields of commerce, services, and industry are subject to the “purple tag” rules, which include ensuring hygiene, social distancing, and more.
Must the employer pay national insurance for the unpaid leave period?
- According to National Insurance Institute regulations, an employer must pay employees’ national insurance fees for the first two months of unpaid leave. Such national insurance fees may, at the end of the unpaid leave period, be reduced from the remuneration paid to the employee. Due to the cash flow stress of many employers, the National Insurance Institute has resolved to extend the reporting and payment deadline for employers until a decision is made on changing the duty to pay national insurance fees during unpaid leave.
- An employee’s return to work (be it at the end of the agreed upon unpaid leave period or beforehand) must be reported to the National Insurance Institute. The employee may do so using the following link