Employers: Everything You Need to Know about Vaccinations (Update)

Barnea Jaffa Lande & Co.

*** The text below was updated on March 9, 2021, in light of current proceedings in the Labor Court and in light of memoranda of law currently being formulated.

The past year has been nothing less than a roller coaster for business owners in Israel – both for their business activity and as employers. Now that we can (possibly) see the light at the end of the tunnel with vaccinations well under way, more than a few questions have arisen concerning the employer’s place and authority to see to vaccination of its employees, as well as the business owner’s place and authority to ensure that those entering the business premises are vaccinated. Given the public discourse, and noting the current proceedings in the Tel Aviv Labor Court as well as the memoranda of law being formulated, we’ve concentrated a list of “do’s and don’ts” concerning the implications of vaccination on the workplace. We note that the introduction of the Green Pass in some of the sectors of the economy did not resolve all of the practical questions a business is facing.

Employers May Take a Stance

We will start with the good news. Employers may take a clear and express stance supporting vaccination. In this case, we recommend that employers take an active part in disseminating information in favor of vaccination. Employers must be the healthy “voice of reason,” charting the right path for the good of their employees, their businesses, and the public at large. In addition to circulating information, active steps, such as bringing mobile vaccination sites to the workplace, are welcome and recommended.

Employers May Ask Employees If They Have Been Vaccinated

In general, an individual’s medical information is sensitive information. Therefore, under normal circumstances, we recommend that employers refrain from requesting employee disclosure of medical information, including information concerning vaccination history. However, we are quite far from normal circumstances. Accordingly, it is our opinion that employers may ask employees if they are vaccinated in the interest of protecting employee health and for the good of those who are present in the workplace, and of course to encourage employees to be vaccinated.

Employers May Not Keep Information Regarding Employee Vaccination

Though an employer may inquire if an employee is vaccinated, we do not recommend that information regarding vaccination status be kept on file. An employer that wishes to keep such information on file must evaluate the justification for such and document it. A potential justification may be sensitive populations with which the employees come into contact.
Please note that according to the Privacy Protection Law, such information is considered sensitive information and keeping it on file at the workplace raises the sensitivity level of the employee database, and sometimes requires management and registration of a special database. The decision to keep information regarding employee vaccination on file holds implications for the security measures that employers are required to implement concerning their databases.

Employers May Not Disclose Information about Which Employees Have Been Vaccinated to Third Parties (Including Customers)

An employee’s consent to disclose information about his or her vaccination status does not constitute consent to share such information with third parties. The employee’s express and separate consent is required in order to update customers on an employee’s vaccination status. Moreover, within the organization, employers must be sure to protect employee privacy and ensure disclosure of employee vaccination status to a minimal number of individuals who require the information in order to carry out their jobs.

Employers May Offer Incentives to Employees Who Have Been Vaccinated

There is no prohibition on compensating vaccinated employees as part of “encouraging” vaccination in the workplace and a “COVID-free” work environment. However, in our opinion, it is doubtful that vaccination incentives have long-term value on the organizational level.

Under Exceptional Circumstances, Employees Who Refuse to Be Vaccinated May Be Furloughed or Put on Mandatory Paid Leave

At present, there is no law that allows for sanctions for an individual that chooses not to be vaccinated. Every individual possesses autonomy over his or her person and the freedom to choose to be vaccinated or not. Therefore, in general, an employee who refuses vaccination (for whatever reason) may not be terminated. Recently, there has been discussion regarding memoranda of law concerning a vaccination mandate for certain employees. We estimate that, at the end of the day, legislation will cover employees who provide services to certain populations (at-risk populations, students, etc.), as well as employees who administer services to the wider public in significant numbers. In the meantime, it is our opinion that certain types of employers (for example, nursing homes or employers who handle at-risk populations) may consider furloughing employees who refuse vaccination or putting them on mandatory paid leave.

Employers May Suggest that Employees Present a Negative COVID Test as a Condition for Entering the Workplace

On February 23, 2021, the Business Sector Presidency in Israel and the General Federation of Labor came out with an announcement regarding vaccinations. According to the announcement, which of course does not constitute binding legislation, employers can require that employees whose positions require contact with the wider public or consistent contact with at-risk populations present a negative COVID test every 72 hours. If presentation of a negative test is not possible, we recommend moving such employees to another position, or distancing them from other employees and customers (such as remote work).

This announcement raises many questions. For example, what are the implications when an employee refuses to take a COVID test and is it appropriate for an employer to require that an employee take an invasive test in order to carry out his or her work? In our opinion, an employer is not at liberty to require that its employees present a negative COVID test in order to enter the workplace, but may suggest that they take such tests.

What about the Green Pass?

According to the “Green Pass” rules, some commercial and business places are required to restrict entry for those who are not vaccinated. With that said, the Green Pass rules do not apply to employees. As such, in some commercial locations, the customers must be vaccinated while, in the meantime, employees are not subject to the same requirement.

What about Businesses in Fields Not Covered by the Green Pass?

Other businesses may strive to limit their employees’ contact with unvaccinated people visiting the business. This is in order to preserve business continuity and employees’ health.
Although at issue are real business interests, there is a need to balance these against respecting the dignity, privacy, and reputation of visitors who, according to currently existing law, have the right not to get vaccinated.

Preventing entry or the provision of a service to a non-vaccinated person may constitute discrimination in the provision of service or in allowing entry. Therefore, any place considered a public space or any business providing a public service may not implement a policy that prevents entry or the receipt of service.

Database and Privacy – Information about the Vaccination Status of Visitors at a Business Creates a Database that Requires Registration and Management

Insofar as employers document information about visitors’ vaccination status, this creates a database mandating registration and management, including implementation of data security means, in compliance with the Privacy Protection Law.

For businesses acting within the scope of the Green Pass, the regulation specifically prohibits retaining the information and only requires presentation of the Green Pass prior to entry.

Employers Must Disclose to Visitors the Mode of Use of Information Regarding Their Vaccination Status

Collection of such information requires disclosure about how this information will be used, especially in places not acting in accordance with the Green Pass and that rely on a formal certificate.

Businesses Must Respect Visitors’ Dignity.

Keep in mind that preventing entry to a business may be treated as discrimination and as injury to a person’s reputation, thereby creating exposure for the business.
To the extent possible, it is advisable to announce a policy about entry being restricted to vaccinated persons only reasonably in advance. This will foil situations of actually needing to prevent entry and allow visitors to prepare in advance.
In addition, it is important to be diligent about keeping information regarding visitors’ vaccination status completely privileged. For example, if a business schedules a meeting with multiple participants and one of the participants does not want to disclose his or her vaccination status, then it is advisable to reschedule as an online meeting without informing participants of the reason why.

The Bottom Line

Businesses may not obligate visitors to respond to the question of whether they have been vaccinated. In addition, they may not obligate visitors to undergo a COVID test before entering a private business. Rather, they may only prevent entry, especially in those places that are not included in the Green Pass regulation.

Wider Implications

When considering such a policy, take into account your relationships with suppliers and service providers whose representatives come to your place of business and examine the policy you set against the contracts with them.
If carrying out an agreement to which a business is a party requires a visitor’s entry into the place of business (such as visits by technicians), the business needs to consider how it can implement a policy of restricting entry to its offices to only vaccinated people without breaching its contractual obligations.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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