Coronavirus: Can I force my employee to get vaccinated? Q&A
Can I ask an employee whether he has been vaccinated or intends to be vaccinated, and what happens if the employee refuses to reply?
By ZEV STUBAdv. Nahum Feinberg (L) and Adv. Orly Aviram (R), labor law experts and partners at the Feinberg & Co. law office.(photo credit: OFIR ABE)
Is an employer allowed to require that a worker get the coronavirus vaccine, or even ask about it?While many questions have not yet been decided conclusively in the courts, the Manufacturer’s Association provided legal opinions for a number of common questions, with the help of Adv. Orly Aviram and Adv. Nachum Feinberg, labor law experts and partners at the Feinberg & Co. law office.Can I ask an employee whether he has been vaccinated or intends to be vaccinated, and what happens if the employee refuses to reply?Yes. The purpose of asking is to prevent the risk of infecting others, and is relevant to making work decisions like whether the employee should work from home or the office, dividing up work capsules, organizing meetings or training sessions, and more.The answer is also relevant for the employer, as he would be the one who pays in the case of quarantine, as the current protocol says that a vaccinated worker would not have to go into quarantine in the case of contact with a confirmed patient.While requiring medical information from an employee may constitute an invasion of privacy and confidentiality in light of the Privacy Laws and Basic Law, as long as the information is relevant to the worker’s position, the employee has a duty of disclosure by virtue of the duty of good faith in an employment relationship.If an employee refuses to respond, it is possible that he is violating the duty of good faith on his part. However, the most practical advice in this case would be to assume that the employee has not received the vaccine.What is the appropriate wording to ask an employee whether he has been vaccinated or is planning to be vaccinated?The following is a possible wording of the questionnaire:Dear employee, we are asking all employees whether they are vaccinated or intend to be vaccinated, for the purpose of planning work schedules, dividing work capsules, conducting work meetings, planning transportation for employees, operating the dining room, etc. Of course, the information will be kept confidential, and its use shall be made solely for the above purpose.Please mark the appropriate answer:• I was vaccinated with two vaccine doses and received a vaccination certificate / I have a recovery certificate) Please attach a certificate;• I was vaccinated with one vaccine dose, and I will be vaccinated with the second dose soon;• I intend to get vaccinated in the near future;• I cannot / do not intend to get vaccinated.Can we use different arrangements at work for recovering and vaccinated workers compared with non-vaccinated workers? (For example, attendance at in-person meetings, use of transportation, entrance to a dining room, etc.)Yes. As far as decisions whose purpose is to prevent risk to other employees in the workplace, it is permitted to allow only recovering and vaccinated workers to take part in live meetings, use organized transportation, work from the office, etc., as long as alternative arrangements for unvaccinated employees comply with the rules of proportionality.Arrangements must also comply with existing legal requirements in place, like the purple ribbon workplace requirements.Is it permitted to condition the entry of an employee into the employer’s premises with a vaccination certificate or an up-to-date corona test?Yes. As we have said above, out of the employer’s duty to maintain the security and health of employees in the workplace, the employer can require that the employee will take care of this outside of working hours, and not at the expense of the employer. This is for employees whose work requires them to be in the presence of other workers or customers.As a side note, section 14(b) of the labor regulations signed between the Manufacturers’ Association and the Histadrut stipulates that “management and workers’ representatives may require a medical examination from the worker at any time... if there is a concern that his work may endanger the health or safety of other workers.”When faced with an employee who refuses to be vaccinated or checked who is able to work from home or in a secluded place in the office (without actually harming the normal course of work), then that solution would be preferred. Only when that is not an option can he be forced to leave the workplace on vacation or unpaid leave. If the employee refuses to go on leave, and there is no other reasonable solution that can be adopted, the employee can be dismissed, subject to the legal procedures and relevant collective agreements in place.What about workers who cannot be vaccinated due to specific health conditions?If working from home or an isolated place in the office is not possible, an updated corona test can also be required. However, in these cases, we believe that the burden is on the employer to find a solution that will allow the employee to continue working, such as changing his role or making adjustments so the employee can perform it from home. His case is stronger than that of someone who can be vaccinated but refuses. Of course, the employer can ask for a medical certificate stating that for medical reasons he cannot be vaccinated.If the employee refuses to present a coronavirus test, and there is no reasonable solution that can be adopted that will allow him to continue working, it is possible to dismiss the employee, subject to legal procedures and contract agreements.Can we encourage employees to get vaccinated by offering a gift package or giving a day off?Yes, in order to maintain the health of the workers and to restore the workplace to its normal functioning. However, care must be taken not to use such benefits as a way to promote any medical position towards employees, or to encourage those who are medically unable to be vaccinated to do so contrary to the medical recommendations.Can we hold information sessions with employees with the goal of raising vaccine awareness?Yes. Various sectors of Israeli society are vaccinated at lower rates than the general sector due to a lack of sufficient information regarding the coronavirus vaccine. For this reason, there is no reason not to hold conversations with health professionals in order to clarify the health benefits of the vaccine and address questions. We also do not see any reason why statements by opinion leaders such as mayors or heads of any sectoral community cannot be used. At the same time, care must be taken that these talks do not put pressure on those who are medically unable to be vaccinated.Can we hold immunization events in the workplace or provide organized transportation to vaccination centers?Yes. In accordance with the rules outlined above, there is no reason the employer cannot encourage employees to get vaccinated in these ways. Of course, they should be notified in advance. Again, care must be taken not to pressure those who are medically unable to be vaccinated.What about foreign workers, asylum seekers and Palestinian workers who are unable to be immunized?In our opinion, the issue of the status of various employees who are prevented from receiving a vaccine due to reasons related to their status is essentially the same as that of employees who are prevented from receiving a vaccine due to health reasons, as detailed above. It should be noted that asylum seekers and migrant workers over the age of 16 are eligible to be vaccinated in Israel as of February 9, and should be treated like all other workers.
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