Dear clients,
First, in these difficult days, we wish to strengthen all those who are at the battlefront as well as their families, wish speedy recovery to all those wounded and injured, and wish that our sons and daughters who were taken prisoner will soon return to Israel safe and sound, and hoping for quieter and better days for all of us.
Following the surprise attack and current security situation, the Minister of Defense announced on the morning of Saturday, October 7, 2023, by virtue of his authority in accordance with Section 9C of the Civil Defense Law, 5711-1951, a special situation on the home front, first within 80 kilometers of the Gaza Strip border, and later that day the declaration was expanded to include the entire territory of Israel. As of this date, the declaration is valid for 48 hours starting from October 7, 2023 at 21.00, and it may be extended in accordance with developments.
Following the declaration of the Minister of Defense, on the same day the Home Front Command published various guidelines and restrictions for the public, which were updated on October 8, 2023. At this stage, these guidelines are valid until October 10, 2023, at 18:00. We of course recommend to follow the Home Front Command guidelines, which may be extended and updated as a result of the situation.
Among other things, the guidelines stipulate as follows:
1. Educational activities are prohibited throughout the country (except for babysitters for children of essential workers within a standard protected space only);
2. In some areas, as outlined in the guidelines, gatherings of up to 10 people will be allowed in an open space and up to 50 people in an enclosed building. As for the rest of the country – gatherings of up to 1,000 people can be held; beaches are closed.
3. In workplaces in certain areas, as outlined in the guidelines, it is possible to conduct activity in places from which it is possible to reach a standard protected space during defense. As for the rest of the country – there is no restriction on the activity of workplaces.
Due to the aforementioned restrictions, many employees will be absent from work, whether at the employer’s initiative or on their own initiative. Therefore, we have summarized a number of important issues regarding employees’ rights and obligations during this period:
Dismissal prohibited
• In accordance with Section 2 of the Emergency Employee Protection Law, 5766–2006 (the “Employee Protection Law”), it is prohibited to dismiss an employee due to an instruction given during a special situation due to which the employee is prevented from reporting for or performing work , as applicable. For example, if the Home Front Command instructions forbade him to arrive at his place of work.
• In addition, by virtue of that section, it is forbidden to dismiss an employee due to his absence from work for the purpose of caring for his child who stays with him, since childcare services are closed due to the instructions of the Home Front Command, as long as the child is not 14 years old, or 21 years old – if the child has special needs, provided that one of the following is met:
(a) the child at in the sole custody of the employee;
(b) the employee is a single parent;
(c) the employee’s spouse is a paid employee or self-employed person who is not absent from work or business for the purpose of caring for the child or in the event that the other parent is unable to care for the child.
• On the other hand, if the Home Front Command does not prohibit arrival at the workplace and the employee decides not to arrive on his own initiative, the employer may examine his dismissal and also deduct his days of absence. However, our recommendation is to be sensitive to the problematic situation and avoid it.
• It is of course forbidden to dismiss an employee due to his call-up to reserve duty under Order 8 during this period, during the reserve service period, and for 30 days thereafter.
Obligation to report of an employee hired at an “essential service factory”
• Following the aforementioned declaration of the Minister of Defense regarding the special situation throughout the country, on October 7, 2023, the Minister of Labor signed an order to apply Chapter D of the Emergency Labor Service Law, 5727-1967.
• The aforementioned chapter of the law allows the Minister of Labor to declare a workplace as an “essential service factory” as defined in that law. These are workplaces that are required for the purposes of State defense, public security or to provide supply or essential services during this period. For example: factories that provide electricity, fuel, gas, water infrastructure, emergency medicine, nursing institutions and support services, welfare institutions, transportation, health maintenance organizations and support services, food supply, local authorities, and others.
• Employees of a workplace, which is declared by the order as an “essential service factory”, must report to their work, unless they have been recruited for reserve service. If they do not report for work, this is allegedly a criminal offense and the employees will not be entitled to a salary for their absence.
Payment of salaries to employees when absent from work due to the special situation
• The Emergency Employee Protection Law does not provide for an employer’s obligation to pay an employee’s wages while he is absent from work. At this stage, in the absence of agreement between the employer and the employee, there is no obligation to pay wages to an employee who is absent from work due to the special situation.
• However, we wish to explain that in the past, in circumstances of war and emergency, collective agreements were signed, the applicability of which was later expanded by expansion orders, regulating in retrospect payment of salaries to employees for their absence from work during a special situation. We expect the issue of payment to employees to be similarly resolved in the future.
• Insofar as possible (according to the needs of the workplace and at the discretion of each employer), it is possible to allow employees to work from their home during this period. In such case, employees will be entitled to regular wages for performing their work. Alternatively, at the request of the employee, he can be made to take paid leave at the expense of the accumulated vacation days in his favor and provided that he has accrued unused vacation days.
Payment of wages upon closure of a workplace located in an area in which a special situation has been declared
• As we discussed above, guidelines have not yet been provided with regard to an event where an employer is not allowed to conduct activities in the workplace due to the Home Front Command guidelines and therefore the employee is absent from the workplace.
• However, in the event that the workplace is located in an area where no restriction has been imposed on the activity and the employer nevertheless chooses, from his own considerations, to close the workplace, the employer may have his employees on paid leave, at the expense of their accumulated vacation days, subject to prior notice and to the fact that the vacation period does not exceed 7 days.
Compensation to employers
• Regarding employers’ compensation for damages and expenses incurred during this period, from past experience, we expect that regulations will be enacted this time too by virtue of which employers will be able to receive compensation for damages they incur. If there are any further updates, we will make sure to post them.
General permit for employing overtime security personnel
• On October 7, 2023, the Minister of Labor signed a temporary order permitting an extension of the working day in the security sector by employing personnel overtime. The purpose is to provide a solution for the limited manpower due to the recruitment of employees to reserve duty in these difficult days.
• The temporary order provides as follows:
(a) From October 7, 2023 until the date on which the declaration of the special situation expires, an employee may be employed in security duties up to 14 hours of work per day including overtime, provided that the employee has provided his agreement.
(b) Employees shall not be employed in security duties over 37 overtime hours per week.
(c) Any employee who has been employed in security duties over 12 hours on a working day, will be entitled to an additional break that will be last at least thirty minutes.
(d) The permit shall apply to employees in security duties who are employed no more than six days per working week.
Summary
These are difficult times, when we are required to demonstrate tolerance, understanding, extra sensitivity, and consideration for special personal situations. This memorandum is of course for general information only, and does not replace legal advice in any specific case.
We will be happy to assist you with any questions and/or clarifications.
Sincerely,
Labor & Employment Practice
Shibolet & Co.
The provisions of this memorandum are given as general information only, and should not be relied upon in any individual case without additional legal advice.
