A foreign caretaker whose patient is institutionalized or passes away – what does the law say?
By the nature of their work, nursing caretakers often face complex situations. Foreign caretakers come to Israel to assist our loved ones at difficult times. Unfortunately, patients often end up institutionalized or pass away during the foreign worker’s tenure. Such a situation raises many legal issues, such as; what is the fate of foreign caretakers in Israel whose patients die or are transferred to a nursing home? Can the worker stay in Israel, and if so, how can it be arranged? These and other issues will be covered in this article.
Our law offices specialize in foreign caretakers and the labor laws that apply to them. We provide our clients with solutions and assistance for such issues as; employment arrangements between caretakers and their patients, transferring workers between patients, and providing legal counseling and assistance for workers and employers in this sector.
Institutionalization or death of a patient – means termination of employment
As we explained in the preceding article in this series, nursing patients as a rule are considered to be the employers of their foreign caretakers for all intents and purposes. The patients are responsible for ensuring that the caretakers’ rights as employees are met. Accordingly, when a patient is institutionalized or passes away, the foreign caretaker is left without an employer. As a result, their employment is automatically terminated.
An employer is required to give an employee advance notice before firing them, giving the worker time to get organized and find a new job. When advance notice is not given or cannot be given, the worker must be provided “advance notice compensation”. This compensation is calculated based on the worker’s normal salary, relative to the period for which they did not receive advance notice. The Labor Court has ruled that this law applies to foreign caretakers whose patients pass away, even if the workers do not intend to stay in Israel.
What about severance pay and other financial obligations?
In addition to the advance notice compensation described above, a foreign worker’s last paycheck must include other additions such as; redemption of unused vacation days, sick pay, severance pay (calculated by multiplying the worker’s last salary by the number of years he or she was employed by the patient), release of pension funds, etc. In cases where the foreign caretakers were employed jointly by the patient and a nursing agency, each one of these parties must contribute to the above payments according to their share in the total employment.
To whom is the demand for payment addressed?
This question is primarily relevant in cases where the patient who employed the foreign worker has died, and family members are shirking their obligation to pay. The most common route in such cases is to file a claim against the executor of the deceased patient’s will. However, in certain cases the labor courts may allow a foreign worker to file a direct claim against the family members who will inherit from the deceased.
A foreign worker may also be allowed to sue a family member if the patient is alive but permanently institutionalized. Labor courts have ruled in a series of cases that when a family member has been significantly involved in the patient’s affairs, beyond the normal level of supervision. In such cases, the family member is generally considered as the employer of the caretaker, and can be sued.
What are a foreign caretaker’s alternative opportunities for employment?
As a rule, foreign caretakers in Israel are restricted to employment in the nursing sector only. The law does not restrict a caretaker from transferring to another nursing job when their employer dies or is institutionalized. Moreover; despite geographic restrictions on changing employers, in cases where the employer dies or is institutionalized, these restrictions are nullified.
However, the situation is different if the foreign worker has been in Israel for longer than 51 months, because of the legal restriction on a foreign worker’s stay in Israel. In such cases, the worker can be temporarily placed as a substitute for another foreign caretaker who has left Israel for vacation on a re-entry visa. Likewise, in exceptional cases, the worker may be allowed to continue employment in Israel by applying for a humanitarian visa.
Contact an attorney specializing in labor law relevant to the nursing sector
If you need legal assistance on any issue related to the nursing sector, or specifically regarding a foreign worker whose employer has died or been institutionalized, we will be happy to help. Contact our law offices in Jerusalem and Tel Aviv, to obtain legal information and assistance. We specialize in the field of foreign caretakers and the regulations pertaining to them.