The Covid-19 Epidemic has led to an unprecedented global state of emergency and created substantial uncertainty in the employment market. Many employers were forced to deal with the economic implication of the mandatory lockdowns, the need to place employees on unpaid vacations and functioning under conditions which include employee absences due to Covid-19 infection or quarantine orders. Leading to the question – is the employer obligated to pay an employee for such absences?
On February 04, 2020, the Israeli Health Ministry issued a blanket illness certificate for every employee who is forced to remain in quarantine, allowing such employees to receive payment for sick-days as prescribed by law, and which, de-facto obligated employers to pay sick-days to those employees under quarantine. This governmental order laid the burden solely on the shoulders of the employers, who already suffered massive damage due to the state of emergency. Collective employers’ organizations petitioned the Israeli High Court, which, on July 27, 2020, revoked the blanket illness certificate and held that individuals under preventive quarantine orders are not actually sick with any illness making them un-fit for work. Their un-fitness has been forced upon them by a governmental quarantine order, thus making the sweeping illness certificate, while forcing employers to pay for those days and deduct them from the employee’s sick-days, an invasive action which substantially changes the balance of power between the parties to the employer-employee relationship.
As a result, the Israeli legislator stipulated by law, which passed on November 18, 2020, the issue of payment to employees under quarantine orders, and divided the responsibility and financial burden more equally between the employees, the employers and the State. The law stipulates the terms under which employees will be deemed eligible for payment due to quarantine, what are the exceptions for such eligibility and who will be responsible for making such payments. Thus, generally, when an employee is required to remain under quarantine, the first day will be bourn by the employee. Afterwards, up to 4 additional days will be deducted from the employee’s sick-days and paid by the employer. In the event that the employee does not have any unused sick-days, the employee will be entitled to enter an “overdraft” status and such will be deducted from the following months. For additional quarantine days, after the sick days have been deducted, the employer will pay for the quarantine period, but will receive compensation from the State at the amounts set by the law.
The issue of quarantine orders joins another unclear issue which is the rights of employees forced to go on unpaid leave due to the Covid-19 epidemic, allowing such to claim unemployment benefits from the Social Security. In regular times, the law sets that employment relationships are not disconnected during this term, only suspended. However, it is clear that the rules do not necessarily apply, or are relevant, in this time of nation-wide crisis and are even sometimes in conflict with the constantly changing new regulations issued by the government. Therefore, one must take extra caution when placing employees on forced unpaid leave, returning them to work or dismissing them during unpaid leave, as it is still unclear how such actions will be seen once things reach the Courts after the pandemic is over.
It is important to understand that placing employees on paid leave must be done in line with the laws and ever-changing regulations, and that compensation for quarantine days from the government will only be received by employers found eligible under law, and only at the amounts set by law. Therefore, it is vital to consult with an attorney familiar with the law and regulations before taking any of those actions, in order to ensure that the employer will not find itself at the end of the epidemic forced to make payments which are not covered by the government or find itself sued by employees.