Is It Legal to Require Employees to Get Vaccinated?
The coronavirus pandemic poses new complex challenges that we have never faced before, which raises the question of whether vaccine mandates – or specifically, mandatory vaccination for employees – are legal according to Israeli law. What are employers allowed to do if an employee refuses to get vaccinated?
Our law offices in Jerusalem and Tel Aviv specialize in labor law. The firm provides employees and employers with comprehensive legal advice and assistance concerning employee rights, pension plans, layoff proceedings, personal and collective agreements, and more. Other articles published on our website regarding employee rights during the coronavirus pandemic address the issue of employment termination during a corona-related furlough and denial of severance pay. In the current article, lawyer Michael Decker explains the issue of mandatory vaccination for employees during these times.
In principle, the legislative has said nothing yet about the issue, and no legislation has been created to clearly regulate the matter. Nevertheless, initial guidelines are taking form to accommodate the situation. This raises loaded complex questions regarding employment relations, personal rights, and more. The existing law has been reinterpreted by the court and the Ministry of Justice in a large number of cases, with the new interpretation giving employers a significant basket of tools to encourage employees to get vaccinated, and to impose certain sanctions on those who refuse to do so. The current article reviews the does and don’ts when dealing with this issue in a situation where no clear legislation exists yet.
Mandatory Vaccination for Employees and Israeli Law
As early as 1989, the Supreme Court dealt with the issue of what to do about an employee who suffers from a disease that may endanger other people in their environment, but who refuses to undergo a medical examination. The then President of the Supreme Court, Meir Shamgar, ruled that, if the employee refuses to listen to the employer and undergo a medical examination, the employee shall not be forced to do so, but the employer is free to take any measures that they see fit. Although the requirement to undergo a medical examination is significantly different from the requirement to get vaccinated, it seems that the set of considerations and risks is principally similar. On the one hand, the employer seeks to protect their business, livelihood, environment, and, most importantly, employees and clients from a dangerous disease that can kill. On the other hand, the issue of vaccinations leads to a head-on collision between various constitutional rights, such as the rights to individual autonomy, honor, and freedom vs. the rights to life, public well-being and health, and livelihood.
Vaccine Mandates and the Basic Law: Human Dignity and Liberty
The Basic Law: Human Dignity and Liberty (for the English version before amendments, see Appendix here) allows every person to decide for themselves about their bodies, and no other person or institution has the right to force them to undergo a medical procedure against their will. Currently, there is no law that requires employees to get vaccinated. However, due to the morbidity state, Israel plans to enact laws that will enable providing benefits to those who get vaccinated and imposing sanctions on those who refuse to do so.
The Public Health Ordinance of 1940, which has remained with us since the times of the British Mandate, allows regional doctors to take quarantine measures that significantly violate civil and individual rights. However, there are Israeli Basic Laws that protect these rights.
The solution lies in finding the right balance. As more alternatives are found which enable less violation of rights, the courts will use these alternatives. For example, if a local municipality wishes to only allow vaccinated individuals to use public swimming pools, the court may require the municipality to check if another swimming pool exists that allows non-vaccinated individuals to enter. The court will probably also take into account the type of service that is denied, and allow municipalities to deny entry into non-essential entertainment and leisure complexes, but not allow them to deny entry into food or medicine shops.
Deputy Attorney General lawyer Raz Nizri stated in an opinion that was published last February that, according to the Patients’ Rights Law, 5756–1996, vaccination is a medical treatment and, as such, requires informed consent.
It may seem that the law forbids requiring an employee to share personal medical information such as whether or not they have been vaccinated, since this type of information is confidential. However, it has already been stipulated that, as long as the employer’s questions are relevant to the employee’s job, the employee is required to answer them due to being bound by duty of good faith. The question regarding an employee’s immunization is relevant for preventing infection in the workplace and maintaining a normal work environment, dividing workers into separate groups, taking mandatory isolation measures, and even preventing lawsuits against the employer in the event of infection.
The Supreme Court recently expressed its opinion on whether the government has the right to impose a closure, and whether this does not materially infringe on the freedom of movement. In its ruling in the petition by Yedidya Leventhal against the Prime Minister in April last year (HCJ case 2435/20), the Supreme Court ruled that the right to life has the upper hand (English translation): “In the horizontal balance between rights, this time, against the infringement of freedoms and basic rights such as freedom of movement, we place the right to life and the integrity of the body, an uncommon situation in our legal system. In this horizontal balance, the hand of the right to life prevails.”
Is There Still Anything to Do?
Based on the above ruling by the Supreme Court, employers may prohibit employees from arriving at work until the employee presents a health certificate, or prohibit an employee from arriving if this may endanger the health of other workers or clients. Employees can avoid this by, for example, undergoing a corona test every 48 hours, which is a bill being discussed today.
May an Employee Who Vehemently Refuses to Get Vaccinated Be Fired?
In the current legal situation, and in accordance with the Labour Inspection (Organisation) Law, 5714–1954, prohibiting an employee who refuses to get vaccinated from arriving at work cannot serve as a reason for layoff. The employer must inform the employee about the various options that they have, and the employee will make the right decision for themselves, such as whether to work from home, take unpaid vacation, or take a furlough. Dismissing a worker for unreasonable or unlawful reasons may lead to lawsuits and increased severance pay, and even to a court order requiring the employer to accept the employee back.
However, if the employee who refuses to get vaccinated also refuses to take vacation, the employer may begin dismissal proceedings. Another way to encourage employees to get vaccinated is by offering gift baskets or paid vacation days, which several big companies have already done.
May Unemployment Benefits Be Denied from a Person Who Refuses to Get Vaccinated and, Consequently, Is Refused Employment?
The current state of affairs makes it impossible to deny unemployment benefits from a person who refuses to get vaccinated, since the State has not yet set regulations to amend the limitations of the primary legislation, by order of the Attorney General. Therefore, refusing vaccination is not a valid reason for being denied eligibility for unemployment benefits. However, employers may take measures to cause unvaccinated workers to leave voluntarily, according to an opinion that was written for the Manufacturers Association of Israel (MAI).
Legislation Initiatives
These days, the question of teachers refusing to get vaccinated and the legal options available to the Ministries of Health and Education are once again coming up for discussion. At the moment, the issue is being discussed between the ministries, and the Ministry of Justice is advising on the matter, but no possible alternatives have been decided upon yet. Therefore, it is not yet possible to say whether or not a particular alternative is legally competent.
At the same time, the Ministry of Health is considering a bill that would require anyone who works with an audience and who is not vaccinated to undergo a corona test every 48 hours. The law is expected to go up for government approval very soon.
A hint of the Attorney General’s position may be found in a reply letter, signed by Deputy Attorney General Raz Nizri, to a request by 600 teaching staff members who demanded not to require teachers to get vaccinated if they do not wish to do so.
He explained: [It has been clarified that local authorities are not allowed at this time to prevent teaching staff, students, and other education staff who have not been vaccinated from arriving at educational institutions, whether they are employed by the Ministry of Education or whether they work at a private or local institution. I have also clarified this to the Attorney General local municipalities representative who inquired about the issue. In this context, I again remind you that, due to the current legal situation, local municipalities are not allowed to create their own rules about when teaching staff will be allowed to arrive at educational institutions.]
However, it seems that it will be possible to implement most of the initiatives aimed at imposing sanctions on vaccine refusers if an appropriate law is enacted. In the current political situation, on the eve of elections, this is almost impossible, and may therefore be delayed until a government is formed. Various publications in the media suggest that the current legal position is that unvaccinated individuals may be denied entry into leisure places, such as restaurants and hotels, entertainment, culture, and sports, as opposed to places that offer essential services, such as food and medicine shops.
Our law firm has professional lawyers who are proficient in labor law and in the rights of employees and employers in general, as well as the legal state of affairs regarding work relations following the coronavirus crisis.
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