Employment Matters


In light of the CORONA crisis is it possible to send employees to unpaid leave on a unilateral basis and without receiving their written consent?


Insofar as the employers are required to send employees to unpaid leave due to the situation, including as an alternative to termination of employment, it is possible to do so unilaterally and without the consent of the employee, on the basis of frustration of the employment contract resulting from the crisis.  If the period of the unpaid leave is 30 days or more, the employees will be entitled to seek unemployment benefit from the National Insurance Institute and they will be required to attend the Employment Service for that purpose.  With regard to workplaces under a factory or field collective agreement, the option of unpaid leave requires specific legal advice.
Employers are not permitted to apply unpaid leave to employees who are protected from being terminated or from a change in the scope of their employment by virtue of law (e.g. pregnant women, those undergoing fertility treatments and the like) without a valid permit as required by applicable law. 


What rights does an employee have when required to take unpaid leave?


During the period of unpaid leave, the employee is not entitled to his/her salary, social benefits or any other benefits customarily given to an employee employed by the company (such as annual leave, sick pay, pension deposits, education fund, participation in various expenses, recreation pay, etc.).  Further, this period is not taken into account for accumulating rights which are dependent on seniority (other than 14 days a year for the purposes of calculating severance pay).
The employer is required to pay national insurance for the employee during the first two months of the unpaid leave, unless the employee is receiving unemployment benefits for that same period. However, the employer can set off these amounts from the salary of the employee after he/she returns to work from the unpaid leave. The employee must take care of payment of national insurance payments for the period after the initial two months.

 


An employee is sent to unpaid leave for one month. After two weeks the employer decides that he should return to work.  Will the employee be entitled to unemployment benefit for the first two weeks of the unpaid leave?


An employee is entitled to payment of unemployment benefits in the event that the unpaid leave extends for 30 days or more, and for so long as he/she meets the conditions set by law for receiving unemployment benefits. Accordingly, in the event that the employer decides to have the employee return to work such that the period of the unpaid leave is less than 30 days, the employee will not be entitled to unemployment benefit. If the employee has accumulated paid leave, the employer may enable the employee to convert the unpaid leave retroactively to annual leave so that the employee’s income is not harmed.

 


An employer is forced to send all its employees to unpaid leave due to the CORONA crisis, and one of the employees is already in house-quarantine or is on sick leave. Is such employee entitled to sick pay or unpaid leave just as the other employees of the employer?


An employee who is absent due to house-quarantine in accordance with the orders of the Ministry of Health or who is absent due to another illness, is entitled to sick pay, provided the employee has accumulated sick leave. It is possible to send an employee to unpaid leave only after the employee has used all sick leave available to him/her.

 


An employer is forced to reduce the scope of works of its employees or send them to unpaid leave. What about employees who are pregnant or undergoing fertility treatments or are still in the 60 day period following their maternity leave? 


According to the Employment of Women Law, it is not possible to adversely change the scope of the position or income of employees who are protected by law from termination of their employment (including during the period of fertility treatments, 60 days following the lapse of maternity leave and the like) unless a permit has been granted by the Supervisor of the Employment of Women Law at the Ministry of Labor, Social Affairs and Social Services.  Therefore, it is not possible to send an employee who is within the period protected from being termination of employment to unpaid leave without receiving a permit from the Supervisor. If the employee consented to the unpaid leave, it is possible to file a joint consented application for a permit.
On 16.3.2020, the Ministry of Labor, Social Affairs and Social Services published guidelines concerning the manner of filing an application for a permit to send employees who are protected by the Employment of Women Law to unpaid leave, and a specific form which has been prepared for that purpose.

 


Can an employee who has been sent to unpaid leave be terminated by the employer?


There is nothing to prevent the termination of the employment of an employee who has been sent to unpaid leave by the employer due to the situation, during the unpaid leave or at the end thereof. Such termination is subject to the usual termination procedures, including a hearing per applicable law.

 


An employer sent its employees to unpaid leave. How should the employer treat an employee who is the midst of a prior notice period (for termination/resignation)?


During the period of prior notice which was given before the unpaid leave, the salary must be paid. Alternatively, it is possible to terminate the employment relationship with immediate effect and pay the employee in lieu of prior notice. If the employee was supposed to work during the prior notice period and he/she is prevented from doing so due to the shut-down of a project or his/her unit or any similar event, it is possible to suspend the notice period and the payment, send the employee to unpaid leave (and in effect defer the termination date), and renew the prior notice period with the renewal of the employment.

 


An employee was sent to unpaid leave in light of the CORONA situation, and falls ill during the unpaid leave. Is he entitled to sick pay?


Where the employee was sent to unpaid leave and only afterwards fell ill, he will not be entitled to payment of sick pay by the employer. 


Is it possible to require that the employee will return equipment to the company (such as a vehicle, telephone, laptop) during the period of the unpaid leave?


An employer may require that an employee return company equipment during the period of the unpaid leave. With regard to a company vehicle, it should be noted that the employer will need to bear the tax for the value of the use in the absence of a source for withholding such amount. It is therefore suggested to prepare an arrangement with the employee concerning the future payment of the tax and also (should the employer be interested in the same) the cost of use (the leasing).

 


Are the pension rights of the employee harmed due to his being sent on unpaid leave?


In the new pension funds, there will be an automatic extension to the employee of the insurance coverage (risk) for a period of up to five full successive months from the date of the last deposit.  In the case of managers' insurance there will be an automatic extension to the employee of the insurance coverage (risk) for a period of up to three full successive months from the date of the last deposit. 
With regard to old pension funds, the employer is required to notify the employee that the employee should approach the pension fund with a request to arrange the insurance coverage immediately.

 


Is an employee entitled to decide that he/she will not come to work because of his/her concern about CORONA?


According to the directions of the Ministry of Health, at this stage, the restriction of coming to work places applies only to employees required to be in home-quarantine or employees who have tested positive for the virus. For so long as the employer meets all the directions of the Ministry of Health, an employee is not entitled to decide unilaterally that he/she will not come to work only because of his/her concern about CORONA. An employee who does not turn up for work in such circumstances will not be entitled to paid salary during his/her absence. The employee can ask that his/her annual leave be utilized for such absence days, if he/she has accumulated annual leave days, however, the employer is not obligated to approve this request. We recommend taking into consideration an employee’s request to stay at home if he/she is in a special health risk group (including due to the employee’s age, underlying health problems and the like).


Given the decision to close educational institutes many employees will be required to stay at home in order to look after small children. Does this absence entitle the employee to receive his/her salary?


According to the existing legal situation, and for so long as there is no other directive, an employee is not entitled to receive his/her salary if the absence is for the purposes of looking after the employee’s children in these circumstances. The employee is entitled to use annual leave, provided he/she has accumulated days. Where the employee does not have annual leave days, absence from work will be regarded as unpaid leave. The employee is required to approach his/her supervisor at work in order to coordinate his/her absence. Where the nature of the employee's work enables the same, and with the consent of the employer, the employee can work from home during this period and continue to receive salary as usual.


Is an employee who is required to stay at home with his/her children, who are required to be in home-quarantine, entitled to receive his/her salary?


An employee who is required to stay with his/her children who are in quarantine, will be entitled to receive children's sick pay according to the Sick Pay Law provided that he/she has accumulated sick leave days. If the employee did not accumulate sick leave days, such period will be treated as unpaid leave and he/she will not be entitled to payment of salary for these days. The employee can ask to use annual leave days.

 


Is it possible to invite an employee to a hearing during these times, for a matter unrelated to the CORONA crisis? If so, is it possible to conduct the hearing remotely (for example by telephone or by video conference)?


In principle, there is nothing to prevent inviting an employee to a hearing and to terminate his/her employment subject to conducting the hearing as required by law. Insofar as it is not possible to hold a face to face hearing due to the circumstances, it is possible to suggest that the employee will provide his/her arguments for the hearing in writing or, alternatively, to hold the hearing over the telephone or in any other manner.

 


In light of the current situation, is it possible to defer the commencement of an employee's employment which was due to commence?


In the event that it is not possible to commence the employment of the employee because of the circumstances, a notice in writing is to be sent to the employee as to the deferral of the commencement of employment. Alternatively, it is possible to commence the employment but send him/her out immediately to unpaid leave.

 


Is the employer entitled to request that its employees take their annual leave due to reduction in the scope of its operations as a result of the CORONA crisis? 


An employer is entitled to request an employee to take annual leave, provided the employee has accumulated leave days. For annual leave of seven days (calendar) or more, prior notice of at least 14 days should be given. For annual leave of less than seven successive days, it is possible to give a shorter notice, and even 'from today to tomorrow'.  With the consent of the employee, it is possible to give notice of leave of more than 7 days with a shorter notice period. It may be assumed that an employee who has to choose between being terminated, taking unpaid leave or immediately taking annual leave, would prefer to go immediately to annual leave of more than 7 days.

 


Is the employer entitled to require an employee in quarantine who is not ill to work from home?


The employer is allowed to direct an employee who is in quarantine to work from his/her home, while paying his/her salary, provided that his/her position enables that and provided that the employee has the requisite equipment for this purpose.

 


Is it possible to reduce the scope of work of an employee who is stationed at a customer, on a temporary basis, further to a customer's request, due to reduction in the business operations of the customer in light of the current situation? 


It is not possible to unilaterally change the terms of employment of an employee. A reduction in the scope of the position of an employee, while also reducing his/her salary accordingly, constitutes an adverse change in the terms of employment. Accordingly, the employer is required to obtain the employee's written consent to such change. Insofar as the employee does not consent to such change, the employer is entitled to commence the process for terminating the employment on the basis of reduction in work force. It is possible to supplement the reduced hours by using vacation hours of the employee if the employee requests the same, and only if the employee has at least 7 calendar annual paid leave days accumulated for successive use during the year.  

 


Is the employer entitled, given the situation, to require that the employee will change his/her manner of work, even if he/she is not in quarantine (such as working from afar, remote instruction, etc.)?


Taking into consideration that the purpose of the change in the manner of work is the continuation of business and the prevention of further damage to the operations of the business or institution by which the employee is employed, and for so long as it will not adversely affect the salary and position of the employee, it seems that the employer is entitled to change the manner of employment in a reasonable and proportionate manner.  The specific circumstances of each case should be taken into consideration, such as an employee not having the proper conditions to work from home. 

 


What are the rights of an employee who is required to go into quarantine according to the directions of the Ministry of Health?  
An employer must not request an employee, who is obligated to be quarantined, to come to the workplace during such period of quarantine. An employer cannot permit such employee to come to the workplace even if requested by the employee. The employee must notify the employer, as soon as possible, of his/her quarantine. 


An employee who is absent from work due to quarantine is entitled to sick leave pay for the period of quarantine, provided that the employee has accumulated sick leave days.  Such employee is not required to provide a doctor's note/certificate but should send the employer a declaration in the form published by the Ministry of Health. 


An employee who has used all his/her sick leave days is entitled to ask that this absence will be on account of his/her annual paid leave if he/she has accumulated annual paid leave days. If there are no accumulated sick leave days or paid leave days, the employer will not be obligated to pay the employee's salary. In addition, it is prohibited to terminate an employee for his absence from work due to the quarantine.
 

Related Contacts

Noah Feller-Maman

Partner, Employment & Labor Practice

Tommy Manor

Partner, Head of Employment & Labor Practice

Michal Zohar-Neistein

Partner, Employment & Labor Practice

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