Introduction

The labour relations field is facing unprecedented challenges due to the COVID-19 crisis. Israel recently commenced a broad vaccination campaign to stop the spread of COVID-19. Employers have many questions, including with regard to how they can act towards employees who refuse vaccination and whether they can provide incentives to workers who choose to get vaccinated. These FAQs answer everything that employers need to know about COVID-19 vaccination in Israel.

Stopping the spread of COVID-19 and returning to routine life are of paramount importance. However, even during the pandemic, employers cannot ignore their employees' basic constitutional rights, such as:

  • the right to equality, privacy and autonomy; and
  • the principle that prohibits discrimination that is entrenched in Israeli labour law.

Employers must strike the appropriate balance between, on the one hand, their rights to property and their freedom to manage their workplace and, on the other hand, the public health interest and employees' fundamental rights.

Many of the issues discussed below have not yet been covered by legislation or dealt with in case law. Therefore, the answers below provide an interpretation of the existing law. In due course, the issues dealt with below may be the subject of legislation or directives which the labour law courts will eventually interpret.

FAQs

Can employers require their employees to get vaccinated?

No, Section 13 of the Patient's Rights Law (5756-1996) establishes that informed consent must be obtained before medical treatment is received as part of individuals' right to dignity and privacy. Therefore, employers cannot require their workers to get vaccinated.

Can employers terminate employees who refuse to get vaccinated, send them on leave without pay or harm their employment conditions?

No, employers cannot take punitive measures against employees who choose not to get vaccinated or harm their work conditions in any way. Discriminatory policies against workers who are unvaccinated may give rise to a cause of action under the Employment (Equal Opportunities) Law (5748-1988). As long as the issue is not legislated, the labour law courts will be unlikely to uphold such punitive measures.

An exception to the above may be for workplaces where COVID-19's spread is a danger to lives (eg, in nursing homes, childcare centres and boarding schools). In these places, under certain circumstances, the balance may shift in favour of protecting public health, enabling specific measures to be taken against employees who are unvaccinated.

Can unvaccinated employees be required to work from home?

To the extent that the nature of the work allows for remote working, employees can be requested to work from home for a limited time without deterioration of their working conditions and benefits. However, a prolonged period of working from home may be problematic and be considered a worsening of the working conditions.

Can incentives be provided to encourage employees to get vaccinated?

Yes, providing incentives (eg, a cash payment or another benefit) to workers who get vaccinated is a reasonable and legitimate course of action. Although the argument can be made that providing incentives to those who get vaccinated is a discriminatory policy that exerts improper pressure on employees to get vaccinated, such measures strike an appropriate balance between employers' and employees' rights. However, if there are employees who cannot be vaccinated due to health reasons, pregnancy or fertility treatments, employers must ensure that they are not prejudiced.

Can employment candidates be asked whether they are vaccinated? Can candidates not be hired because they are unvaccinated?

No, the principles established in the Employment (Equal Opportunities) Law also apply to the hiring process.

Can employers require employees to disclose their vaccination status?

Employers are advised not to demand information on employees' vaccination status. Section 2(11) of the Protection of Privacy Law (5741-1981) establishes that such demand may be considered a privacy violation.

This question necessitates assessing whether the results achieved by receiving employees' information outweighs the harm to employees' privacy. Accordingly, if it becomes clear in due course that receiving the vaccine reduces the potential of transmitting COVID-19, employers' interest to obtain the information could be considered proportional.

Can employers keep a registry on employees' vaccination status?

Arguably, creating a database on employees' vaccination status amounts to a privacy violation that may result in penalties against employers under the Protection of Privacy Law. If employers condition attendance at the workplace on employees' vaccination status (which itself is permitted only for extraordinary cases – see above), demanding a vaccination certificate is the right course of action.

Can a mobile vaccination clinic be brought to the workplace?

Yes, bringing a mobile vaccination clinic to the workplace would be considered legitimate encouragement to vaccinate. However, this cannot include any element of coercion or punishment to employees who refuse to get vaccinated.