This past year has been nothing short of a rollercoaster ride for employers in Israel, in terms of both their business activities and their role as employers. Now, when we can perhaps see a glimmer of light at the end of the tunnel in the form of Israel’s vaccination campaign, quite a few questions arise.
These questions revolve around employers’ responsibility and authority to make sure their employees are vaccinated, as well as business owners’ responsibility to ensure the people entering their premises are vaccinated.
In light of the public debate and the possible implementation of a “green passport” policy for various types of businesses, and the various legal opinions published, which may create legal exposures we compiled a list of “do’s and don’ts” relating to the implications of the vaccination campaign on workplaces and businesses.
Employers may express their position.
Let’s start with the good news. Employers can express their clear and explicit position in support of vaccination. It is recommended that employers take an active part in the State’s efforts to encourage everyone to get vaccinated. Employers should be “the sane and healthy voice” that speaks in favor of everyone getting vaccinated for the welfare of their employees, their businesses, and the general population. In addition to employers’ encouragement efforts, active measures, such as inviting “mobile vaccination units” to workplaces, are appropriate and welcome.
Employers may show interest and ask their employees if they have been vaccinated.
As a rule, information about a person’s medical situation is sensitive. Therefore, normally, the recommendation is not to ask to receive information from an employee about his or her medical situation, including in relation to vaccinations. However, we are very far from ordinary times. Therefore, in our opinion, employers may ask employees if they have been vaccinated in order to safeguard not only the employee’s health but also the health of all those entering the workplace/business and, of course, in order to encourage employees to get vaccinated.
Employers may not obligate their employees to get vaccinated or sign an undertaking to do so.
Every person has autonomy over his or her own body. Therefore, employers may not actively obligate employees to get vaccinated. Employers also may not compel employees to provide information about their vaccination status.
Employers may not retain information about employees’ vaccination status.
Although employers may take an interest and ask if an employee has been vaccinated, it is inadvisable to retain information about which employees have or have not been vaccinated. If an employer wishes to retain such information, then it must consider what the justification is for doing so and document it. One possible justification may be that its employees come into contact with sensitive populations.
We point out that, pursuant to the Privacy Protection Law, such information is sensitive and retaining it raises the sensitivity level of that employee database. This may often require the registration and management of a special database. The decision to retain information about employees’ vaccination status also has repercussions on the data security means employers must implement in relation to that database.
Employers may not convey information to third parties (including customers) about their employees’ vaccination status.
An employee’s consent to divulge information about his or her vaccination status does not constitute consent to share that information with third parties. Updating customers about the vaccination status of any employee requires the express and individual consent of each employee. Employers must also be diligent about privacy protection within the organization and make sure they disclose employees’ vaccination status only to the minimum number of people who require this information to perform their jobs.
Employers may grant fringe benefits to vaccinated employees.
There is no prohibition on remunerating employees who have gotten vaccinated as an incentive to encourage other employees in the workplace to get vaccinated and thus maintain a work environment “free of the coronavirus.” However, in our view, it may be inadvisable for employees to opt to get vaccinated only because of the benefits they will receive from their employers. Furthermore, it is doubtful granting incentives to encourage employees to get vaccinated will generate any long-term added value at the organizational level.
Employers may not fire or adversely change an employee’s employment terms if the employee does not want to get vaccinated.
Currently, the law does not permit the imposition of any sanction on a person who chooses not to get vaccinated. Every person has autonomy over his or her own body and the freedom to choose whether or not to get vaccinated. Therefore, as a rule, employers may not fire an employee who refuses to get vaccinated (for whatever reason), to adversely change his or her employment terms, or to force the employee to take leave without pay. Furthermore, employers cannot instruct any non-vaccinated employee to not come to work.
According to various press reports, there is an intention to legislate a law that will obligate educators and other employees to get vaccinated, and if they refuse to force them to take leave without pay. Of course, with the enactment of specific legislation in this regard, and insofar as the High Court of Justice does not invalidate it on appeal, our advice may change.
A business that operates a public space or provides a public service may not prevent entry or service to non-vaccinated people.
Also within the scope of business activities, in order to preserve business continuity and employees’ health, employers may strive to limit their employees’ contact with unvaccinated people visiting the business. 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 to not 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.
Retaining information about the vaccination status of visitors at a business creates a database that requires registration and management in compliance with the Privacy Protection Law.
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.
Employers must disclose to visitors the mode of use of information regarding their vaccination status.
Even when at issue is a private business, collection of such information requires disclosure about how this information will be used.
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 is that businesses may not obligate visitors to respond to the question of whether they have been vaccinated or to obligate them to undergo a coronavirus test before entering a private business. Rather, they may only prevent entry.
Additionally, it is important to verify that banning entry will not prejudice a visitor’s rights. For example, if at issue is a customer requesting a meeting or the receipt of service at the business’s offices, to the extent possible, the business should allow the meeting to be held or the service to be provided through online means.
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.