On Faith, Covid-19 Vaccines, Fish and Bicycles

On Faith, Covid-19 Vaccines, Fish and Bicycles

Doron Afik, Esq.
August 23, 2021

A person without faith is like a fish without a bicycle. People believe in many things, not all of which are justified, to say the least. Some people believe that vaccines (against Covid-19, or in general) are something to be fought against, even if it endangers themselves and others. While such probably cannot be prevented from believing in this new faith, the question is whether their freedom of faith obligates employers as well? Is an employer whose unvaccinated employee has fallen ill (or gone into lockdown) obligated to pay sick days or wages in respect of these days even though the same employee wouldn’t have been paid had the employees taken vacation days?

In a case that reached the Tel Aviv Labor Court in March, 2021, the Court held that an employer may require the employee to disclose whether he has been vaccinated and may also demand from him to perform Covid-19 tests frequently, as long as he has not been vaccinated. The Jerusalem Labor Court held in early July, 2021, that an employee cannot be required to be vaccinated as a condition for returning from forced leave, but towards the end of July a holding was given in the Tel Aviv Labor Court that an employer may put an employee on forced leave if he refuses to be vaccinated or checked, when the clients of the employer demanded that the employee will not work if he is not vaccinated.

The Labor Courts have recognized the right of employees to strike as a constitutional right and there is no dispute that an employee is entitled to stand by his principles and strike. However, there is also no doubt that once an employee decides to strike, he is not entitled to wages for strike days because it is permissible to fight for your beliefs, but not at the expense of the employer (who is in any case harmed by the employee striking, regardless of wage cost). But what about an employee who decides, for the sake of his beliefs, not to get vaccinated and as a result falls ill in Covid-19 or goes into lockdown due to exposure to a sick person? A case heard by the Labor Court in December, 2020, involved State employees who were ill at the time of a declared strike. In that case, the Court found that although no pay would be paid during a strike, sick pay would be paid to an employee who could show that in those days he was indeed ill with a real illness unrelated to the strike. An employee is not entitled to sick days if there is a connection between the illness and the strike and the employee has to show that there is no connection between the two. And what about our question? While it seems that these are employees who have fallen on the altar of their faith, it is still difficult to say that the disease is fictitious (which is actually a claim of some vaccine opponents ...) and is actually a strike of the employee and therefore there is probably no reason to withhold wages from the employee.

What about the employee's voluntary risk? Is it possible to say that because the employee deliberately chose to assume the risk, he is not entitled to sick days? When an employee, for example, goes on a ski trip or other extreme sports vacation, and is injured, he is still entitled to sick days at the expense of the employer. Equally, it is not possible to deny sick leave from an employee who was exposed to a person who has the flu. However, it seems that an employer may consider, as part of the considerations regarding the employment or dismissal of an employee, the question of the employee's refusal to be vaccinated, just as an employer may decide not to employ a person after hearing that such person has a hobby of off-road motorcycles every weekend. It seems that such a hobby can be a consideration for an employer who compares the same employee to an employee who does not take risks.

In contrast, an employee who chooses to fly abroad for a vacation in a country from which return requires lock-down is not currently entitled to payment for the days of lockdown - and rightly so. The employee has chosen, knowingly, to fly to such place. However, even in the (blessed) act amendment of August 5, 2021, the Israeli legislature set a reduction in salary of only 25% for employees who were voluntarily not vaccinated but must be under lockdown because they were exposed to a verified patient. The “fine” of 25% seems not to apply when a non-vaccinated employee is actually sick and it seems that in such a case the employee is entitled to full sick leave although the employee voluntarily chose to endanger himself and others.

Why a 25% wage reduction only and not a complete cancellation of wage entitlement and why an employee who chooses not to get vaccinated is entitled to sick days as long as he fell sick? A fascinating question! Just as other laws designed to protect employees (e.g. the laws that prevent women from working during maternity leave even though many women believe in true equality and want to work from home after recovering from childbirth, and even feel required to do so for mental health) this law may have a very clear statement: Employers, demand from work candidate to know whether they believe in the god of the anti-vaccines and as long as non-vaccination is their faith, think carefully before you decide to employ them, lest you be required to pay wages if they fall sick and bear other costs due to their faith.