Dear Clients and Colleagues,

Work during wartime
We are experiencing tense days, with lots of uncertainty enveloping both employees and employers alike.

The Minister of Defence has declared a “special home front situation” in a range spanning across the entire country. According to instructions issued by the Home Front Command, work can be performed in a workplace that will allow easy access to a standard protected space while defending oneself, but engaging in educational activities is prohibited.

Therefore, diverse questions were raised concerning permitted conduct in a workplace, bearing in mind also the absenteeism of many employees, whether due to closure of the educational institutions, the enlistment of employees in the form of call up orders (Tzav 8), the fears faced by employees in getting to the workplace and the like.

In this update, we will try and answer the widespread questions, bearing in mind that the current situation is dynamic and might change, based on past precedents, and instructions and recommendations given by the Ministry of Labor.

In addition, we will update you of the permits that were granted for working overtime.

Protected employees under the Emergency Protection of Employees Law

• The main legislation that addresses the rights of employees in an emergency, is the Emergency Protection of Employees Law, 5766-2006 (“the Emergency Protection of Employees Law”).
• This law imposes a prohibition on dismissing an employee for being absent from work, due to an order given during a “special home front situation”, which because of it, the employee is prevented from being present at the workplace or performing his work (for example, where an employee cannot get to work due to instructions issued by the Home Front Command); as well as where an employee was absent from work in order to take care of his/her child due to closure of the educational institution attended by the child, in view of the special situation, subject to the following conditions: the child has not yet reached the age of 14 (as well as a child with special needs as such term is defined in the Special Education Law, 5748-1988), and fulfilment of any of the following criteria: the child is under the sole parental guidance of the employee or in the case of a “monoparental family” (meaning that the parent is unmarried and does not have a common law partner; or a parent who lives apart, ); the employee’s spouse was not absent from his work, business or occupation in order to take care of the child, and if he was so absent, he was unable to take care of the child (relevant, for example, in circumstances where the spouse is on military reserve duty (miluim).
• It should be noted that according to instructions issued by the Home Front Command as currently in effect, workplaces throughout Israel are operating, subject to the existence of an accessible standard protected space. Nonetheless, since the educational institutions are closed, many employees fall within the category of protected employees.
• The prohibition on dismissal does not apply to various types of “essential” employees, including: a person who has been called for employment service according to the Emergency Employment Service Law, 5727-1967 (“the Emergency Employment Service Law”) (for example, an employee in an essential factory), and security services personnel (police officers, prison guards, members of auxiliary organizations, rescue employees, ).
• It is further specified in law that the absence of an employee from work in the circumstances detailed above, will not be regarded as stoppage in the continuity of his work, nor will his pending rights of seniority vis-à-vis his employer be impacted.

Payment to employees

• The law does not expressly address the issue of payment to employees during a special situation, but only the prohibition on dismissing protected employees in accordance with its provisions.
• The determination of compensation and its scope (including compensation concerning salary) during wartimes and in war zones, will be examined and decided in retrospect. In similar previous cases, collective agreements were signed, that were expanded by expansion orders, and on that basis, employers were obliged to pay employees who were absent from work in the circumstances described above, retroactive salary and were subsequently indemnified for doing so.
• Accordingly, the recommendation of the Ministry of Labor is that employers pay their employees who are absent from work in the aforementioned circumstances a salary, as if they had worked as usual, with the expectation being that compensating employers for having paid those employees a salary will be received (subject to agreements), following claims that will be submitted to the Ministry of Finance, as shall be determined in the Property Tax and Compensation Regulations. Attention should nonetheless be drawn to the fact that, as noted above, this is merely a recommendation. The law itself does not regulate the matter and does not clearly oblige that payment of a salary be made to an employee who is absent from work before the matter is formally and expressly regulated in a collective agreement.
• There should also be taken into account the fact that absenteeism from work for any other reason, not in accordance with the Emergency Protection of Employees Law, will probably not trigger a right to indemnification from the State for payment of salary due to such absenteeism, including in this respect: an employee whose child is 14 years of age and older (even if the spouse worked or was prevented from taking care of the child); an employee whose spouse was also at home with the children; an employee who is afraid of going to work, even though the workplace provides a standard protected space for employees (as aforesaid, currently the Home Front Command has not prohibited going to work, subject to the existence of a standard protected space).

Working from home

• Working from home to the extent possible, is given at the employer’s discretion.

Reducing the scope of the job position/unpaid leave/utilisation of holiday leave

• Reducing the scope of the job position or going on unpaid leave (for example, due to a reduction in output and level of activities given the special situation) is possible, subject to the employee’s consent.
• In addition, if work cannot be supplied to the employee or if there is a fear (unrelated to protection of the workplace) of getting to work, there can be considered sending the employee on concentrated leave of up to 7 days, subject to a sufficient balance of unutilized vacation days.

Working overtime

• We further want to update you that in order to respond to the needs of the economy in the guarding and security sector during the current period, and the increased requests for security services, on 7 October 2023 the Minister of Labor signed a permit extending the workday in the guarding sector to 14 hours of work a day, including overtime, without changing the coverage of weekly overtime in the sector amounting to 37 overtime hours a week, provided that an employee who is employed for more than 12 hours a day, receives an additional break, as specified in law, of at least 30 minutes, and that the employee will not be employed more than 6 days a week. The permit will remain in force until expiry of the Home Front Command’s instructions concerning the special home front situation.
• In addition, last week (October 9, 2023), a general permit was published, with respect to the entire economy (and not being limited to the guarding sector only), in which it was stated that an employee may not be employed for more than 67 hours, including overtime, in a work week, provided that the coverage of overtime in a month will not exceed 90 hours. According to this permit, the total duration of a workday shall not exceed 12 hours, however it may be possible to employ an employee for up to 14 hours day (including overtime), if the employee agrees to this, and subject to a break of 15 minutes being given between the 12 and 14 hours.

This permit does not apply to employers in the public transportation sector (this sector was given a separate permit a short time ago. See details below), and on whom the expansion order in the conveyance and transportation sectors, or the expansion order in the sector of construction, infrastructure, heavy mechanical equipment, public works and renovations, apply.

Since the order is intended to answer to the manpower shortage that was created due to the special situation, in cases where employers employ more than 20 employees, the permit will apply only if at least 20% of their employees (as reported to the National Insurance Institute (Bituach Leumi) during the period May-July 2023) were absent from the workplace, in circumstances not dependent on the employer, and where the work could not be performed by employees holding an identical position without working overtime according to the permit; or if shift employees are employed in the workplace where at least 20% of the workforce employed in that shift is absent and it was not possible to perform the work with the identical level of output except by employees working that shift.

Moreover, the permit does not apply to an employer that prior to commencement of the declaration of the special home front situation possessed valid authorisation of it operating as an essential factory under the Emergency Employment Service Law.

The validity of the permit is 14 days from the date of its publication (October 9, 2023) or until conclusion of the special home front situation, whichever is the earlier.

• The transportation sector.

In addition, we are updating that on 14.10.23 a general permit was published, with respect to the employees in the transportation sector.

According to the permit, it is allowed to employ an employee who drives a public bus on service lines or who has been given a special transportation[1] license, or a commercial vehicle whose total permissible weight exceeds 6,000 kg, up to 15 working hours a day, including overtime. In a working week, an employee can be employed up to 90 hours per week, including overtime.

The above is subject to the employee's consent and without detracting from any employee's right to a resting time according to the law and the traffic ordinance.

The permit period is from 14.10.23 until 22.10.23 or until conclusion of the special home front situation, whichever is the earlier.

As stated above, the situation is dynamic, and is subject to changes (bearing in mind, among others, the question as to whether the educational institutions will be operating under a regular structure in the coming days), and the fact that the above recommendations are based on past precedents and guidelines published by the Ministry of Labor that are also subject to changes.

We are at your disposal and recommend that you consult with us in any event on the merits, and we wish you and your loved ones safe and quiet days, to the extent possible.

 

[1]For this matter "special transportation" is as defined in the Order for the Supervision of Goods and Services (tour transportation, special transportation, and car rental) 1985.