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25 March 2020
The ongoing global outbreak and spread of novel coronavirus 2019 (COVID-19) is a dramatic event of global proportions, with far-reaching implications for a wide range of areas. This article summarises the principal legal ramifications of the outbreak for labour law – an area on which, to date, the COVID-19 outbreak has had a significant impact.
The recent spread of COVID-19 has required many Israelis to go into home isolation for 14 days, and the list of countries and range of cases that give rise to the isolation requirement have been continually updated and extended. As of 9 March 2020, all persons entering Israel from abroad must go into home isolation for 14 days. The increasing number of individuals subjected to isolation raises many questions among employers and employees, including as regards days of absence, remote work and similar matters.
The spread of COVID-19 has led to a significant increase in the number of individuals being required to remain in isolation. Pursuant to Public Health Order (Novel Coronavirus) (Home Isolation) (Temporary Order) 2020, an 'employee in isolation' is defined as "any person who is employed, including a volunteer or a person providing services at the employer's premises, whether or not an employment relationship exists, who must remain in isolation pursuant to the Home Isolation Order".
According to the Ministry of Health, any person who has met the criteria and entered isolation is automatically deemed to receive confirmation of illness, without being required to visit a doctor. The sweeping confirmation of illness, together with the declaration and confirmation of the date of departing one of the countries giving rise to the isolation requirement, constitute a substitute for an ordinary confirmation of illness. Employers must accept the sweeping confirmation of illness determined by the Ministry of Health and cannot require any other confirmation of illness from employees in isolation. Employees in isolation must notify their employer, as promptly as possible, that they must remain in isolation and detail the duration of the period.
In addition, employers cannot require employees in isolation to come into the workplace and must prevent the possibility of employees subject to isolation from entering the workplace during the isolation period, even if the employee requests to do so.
Under the order, employers cannot terminate the employment of an employee who is absent from work because of isolation caused by a concern of having contracted coronavirus. Employees who are forced to remain in isolation will:
At present, and until ordered otherwise, days of absence for employees in isolation are deducted from their cumulative sick day entitlement. Thus, until other instructions are issued by the Ministry of Health, an employee who uses all of their sick day entitlement would have any remaining days of isolation treated as unpaid leave that is deducted from their salary.
Although there is no prohibition on employees working from home during isolation, the answer to this question is unclear. On the one hand, according to the order, employers must require the employee to stay at home and, since the employee receives a full salary for the isolation period, it seems reasonable to require the employee to perform their job from home during that period, insofar as is possible under the circumstances.
On the other hand, the employee is entitled, by virtue of the sweeping confirmation of illness, to receive sick pay; thus, employees may argue that they are not obligated to work from home during this period.
Since most employees in isolation are not ill but are in isolation solely out of caution, a practical approach may be that this matter should be addressed at the employer's discretion. Arguably, employers have a legitimate right to require their employees who are in isolation but not ill to work for their regular salary, insofar as this is possible considering the type of work that is required.
The spread of COVID-19 and the dynamic nature of the Ministry of Health's instructions continue to expand the scope of employees who are subject to isolation. Accordingly, more detailed instructions regarding remote work, the use of sick days beyond the quota accumulated by employees as a result of home isolation and matters relating to both employers and employees may be presented shortly.
For further information on this topic please contact Moran Friedman at Fischer Behar Chen Well Orion & Co by telephone (+972 3 694 4111) or email (firstname.lastname@example.org). The Fischer Behar Chen Well Orion & Co website can be accessed at www.fbclawyers.com.
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