10.6092/issn.1561-8048/10794
The article, written at the peak of lockdown and closures due to the Covid-19 pandemic in Israel, describes the government’s initial response to the employment crisis (up to the 10th of April 2020). A host of emergency regulations affected the continuation of employment, and the provision of a social security safety net. Following a short description of the legal developments, the article notes some problems in the immediate response at times of crisis, including the use of the social security (unemployment insurance) system in lieu of encouraging the continuation of work to the extent medically possible, a differentiation between categories of work-providers in the public and private sectors, the gendered aspect of responses and the exceptional difficulties faced by those who are part of the weaker segments in the workforce.
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Guy Mundlak
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COVID-19 and Labour Law: Israel
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2020-04-14
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Guy Mundlak
2020/04/15
10.6092/issn.1561-8048/10794
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1561-8048
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COVID-19 and Labour Law: Israel
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COVID-19 and Labour Law: Israel                                                    Italian Labour Law e-Journal
Einat Albin, Guy Mundlak                                                          Special Issue 1, Vol. 13 (2020)
einat.albin@mail.huji.ac.il                                         Covid-19 and Labour Law. A Global Review
mundlak@tauex.tau.ac.il                                                                         ISSN 1561-8048
                                                                 https://doi.org/10.6092/issn.1561-8048/10794




                    COVID-19 and Labour Law: Israel
                      Einat Albin, Guy Mundlak*

                                                 Abstract
     The article, written at the peak of lockdown and closures due to the Covid-19 pandemic in
     Israel, describes the government’s initial response to the employment crisis (up to the 10th of
     April 2020). A host of emergency regulations affected the continuation of employment, and
     the provision of a social security safety net. Following a short description of the legal
     developments, the article notes some problems in the immediate response at times of crisis,
     including the use of the social security (unemployment insurance) system in lieu of
     encouraging the continuation of work to the extent medically possible, a differentiation
     between categories of work-providers in the public and private sectors, the gendered aspect of
     responses and the exceptional difficulties faced by those who are part of the weaker segments
     in the workforce.

     Keywords: Covid-19; Labour Law; Unemployment insurance; Employment policy; Gender.




    The Covid-19 pandemic elicited in Israel a relatively rapid response, which holds an
 advantage of relatively hermetic borders with entry through only one major airport.
 However, preliminary success was diluted by the quick spread of the virus, leading to
 further limitations of closure, lock-ins and isolation requirements. Setting aside a host of
 constitutional question - such as the use of emergency regulations, and structural matters of
 governance - such as the quality of decision-making processes at times of crisis within a
 long-lasting period of political instability and uncertainty, the following looks at
 employment related matters. However, the health, political, and employment matters are
 inseparable.

    Similar to other countries, Israel was not prepared with policies to address the economic
 and social consequences of the COVID-19 crisis and it seems as if the health restrictions
 set the tone. Moreover, Israel’s employment-related restructuring measures are
 underdeveloped and therefore had no embryonic structures to develop1. Israel was

 *
   Einat Albin, Assistant Professor, Law Faculty, The Hebrew University of Jerusalem; Guy Mundlak,
 Professor of Labour Law at The Buchmann Faculty of Law, Tel Aviv University, Israel. Text is updated to
 April 10, 2020. The text documents in brief developments that took place for approximately one month. The
 advantage of its timely and immediate description should be offset with the lack of a long-term perspective.
 1 The absence of restructuring programs is striking in comparison to some OECD countries, for example – as

 documented in the Eurofound Restructuring Monitor:
 (https://www.eurofound.europa.eu/observatories/emcc/european-restructuring-monitor).
 Einat Albin                                                                  Italian Labour Law e-Journal
 Guy Mundlak                                                                 Special Issue 1, Vol. 13 (2020)
                                                                Covid-19 and Labour Law. A Global Review
                                                                                  Section: National Reports




therefore indecisive in the employment policy it adopted. In the first week of the crisis the
Ministry of Finance, which is the main governmental body handling the crisis alongside the
Ministry of Health and the Ministry of Defense, called for a continuous operation of
economic activity, while observing the health requirements. The public sector and most of
the private sector adjusted accordingly, requiring protective measures at the workplace and
when possible - encouraging their workers to work from home. But a week later, health
policy changed, and what started as a recommendation to avoid congregations (circa
5.3.2020)2, gradually progressed towards legal requirements to stay home with exceptions
(eg, shopping for food and pharmacy, or the performance of essential work by the end of
March 2020). All workplaces were instructed to limit the number of workers present at the
work-place to ten workers or 30 per-cent, whichever is higher. This enabled employers to
continue employment with very few working in the establishment itself, while others
working from home3. The so called “70-30” rule, was later amended into a “85-15 rule”
(only 15 per cent are allowed to be at the workplace), with numerous exceptions for
essential services in both the public and the private sector (eg., security service and
supermarkets, respectively).4 Regulations from 19.3.2020 prohibited the opening of cultural
and sports centres, public parks, hotels and restaurants and more. While some could
provide partial service (e.g., deliveries from restaurant), others could no longer operate, and
in fact some shut down the business even before the regulatory provisions5.

   As a result, a massive displacement of workers took place. This included workers
employed by services that were shut, voluntarily or by regulations, workers whose work
was made unfeasible by the 70-30/85-15 social-distancing rule, but also – and not less
importantly – workers who were displaced by employers’ exploitation of the situation.
Within a short time, unemployment rates surged from a record low in early 2020
(approximately 3.5%) to a record high by late March 2020 (approximately 25%).6
Unemployment rates, measured by the number of employees who register for
unemployment insurance, provide an under-estimate of the employment crisis, because
they do not include independent (self-standing) workers, freelancers, and other forms of
work providers who are not classified as ‘employees’ and according to Israeli law are
disqualified from unemployment insurance.



While some immediate measures in Europe expanded existing programs such as the short-time working
allowances (eg., in Germany – Kurzarbeitergeld), the absence of a clear employment-related restructuring
measures in Israel required a de-novo approach.
2 The Public Health Decree (New Corona Virus) (Solitary Confinement and Other Instructions)( 9.2.2020,

amended 5.3.2020, and further amended on 12.3, 15.3., 19.3, 2.4).
3 Emergency Regulation (Limiting the Number of Workers in order to Reduce the Expansion of the New

Corona Virus), 2020 (21.3.2020). Preparatory draft was circulated on 16.3.2020.
4 Emergency Regulation (Limiting the Number of Workers in order to Reduce the Expansion of the New

Corona Virus), 2020 (amended 31.3.2020).
5 The Public Health Decree (New Corona Virus)(Solitary Confinement and Other Instructions)(Temporary

Order), 2020, Sec. 3(a), 3(c) (amendment 19.3.2020).
6 Data Reported by the National Insurance Institute to the Parliament’s Committee on Welfare and

Employment (30.3.2020), and updated on 5.4.2020, as reported in daily newspapers.

https://doi.org/10.6092/issn.1561-8048/10794                                                               2
    Einat Albin                                                                      Italian Labour Law e-Journal
    Guy Mundlak                                                                     Special Issue 1, Vol. 13 (2020)
                                                                       Covid-19 and Labour Law. A Global Review
                                                                                         Section: National Reports




   During this period of time, the State took several measures, responding to the situation
of massive displacement, while creating intended and unintended incentives to place
workers on unpaid leave in order to minimize expenses.
   • For those who were permanently dismissed from their jobs, the state eased the
       conditions for receiving unemployment insurance and also extended the period of
       entitlement for several weeks (at the time of writing).7 However, it is important to
       note that Israel’s unemployment insurance, administered as part of the National
       Insurance, is rather slim in comparison to OECD standards, on all accounts –
       eligibility conditions, replacement rate, and length of eligibility8.
   • To ease the economic hardship from those who are not fully dismissed it was
       decided that employees who are sent to unpaid leave of at least 30 days, would be
       qualified for unemployment insurance if the other conditions required in law, some
       of which were relaxed, are met9. This in fact created an incentive for employers to
       release workers who cannot work in full, to a full-fledged leave of absence, so that
       the employees could claim unemployment insurance from the state.
   • On 18.3.2020 the major trade union in Israel – the General Histadrut – concluded a
       collective agreement with the public employers, including the State and local
       municipalities, according to which the wages of employees whose work was ceased
       will continue to be paid by drawing on their accrued vacation days, and if necessary
       to draw on future vacation days10. The state was concerned with the public-sector
       being viewed as privileged compared to private sector, and therefore prevented
       these workers from turning to the publicly funded unemployment insurance.
       However, this created a different type of asymmetry between the public and private
       sectors, because the public sector employees must fund their leave of absence
       exclusively by their own employment rights.
   • Finally, independent workers, freelancers and other categories of non-employees,
       remain excluded from unemployment insurance, and were granted a special short-
       term grant, of lesser value than unemployment insurance, taxable, based on
       household income tests and on other targeted conditions that are not required from
       employees who were relegated to unpaid leave and unemployment insurance11. As a
       result, a significant number of work-providers were excluded from the scope of
       benefits.
   • Importantly, in comparison to other countries, no measures were taken in Israel
       thus far (10.4.2020) to encourage continuation of employment, to the extent health-

7 Emergency Regulation (New Corona Virus) (Special Rules for Unemployment Benefits) 2020 (27.3.2020).
8 OECD, Employment Outlook (2018), Chapter 5, 2018. Some comparative data missing and described in
Hebrew, in: Bendlak J., The Social Security System in Israel and in OECD Countries, in National Insurance Institute
Periodic Reports #296, 2018, pp 50-56.
9 See note 7, supra. Special instructions were already in place since 16.3.2020.
10 Collective Agreement from the 18th of March 2020 between The State of Israel and others and the New

General Histadrut. Can also be found at: Emergency Regulation (Extending the Agreement on Vacation
Leave for Public Sector Employees due to the New Corona Virus), 2020 (21.3.2020).
11 Emergency Regulation (New Corona Virus) (Grant for Self-Employed), 2020 (2.4.202). New, and more

accommodating, regulations were announced on 7.4.2020 but not yet enacted.

https://doi.org/10.6092/issn.1561-8048/10794                                                                      3
     Einat Albin                                                                    Italian Labour Law e-Journal
     Guy Mundlak                                                                   Special Issue 1, Vol. 13 (2020)
                                                                      Covid-19 and Labour Law. A Global Review
                                                                                        Section: National Reports




           related restrictions permit. Subsidies to employers to continue the work of their
           employees were not provided, nor is there legislation to encourage the development
           of more flexible work or job-sharing to spread more evenly the burden of
           unemployment. Nor have there been, thus far, any programs to aid workers, for
           example – by means of re-training, towards expected changes in the composition of
           the labour market and changes in demand.

    Despite pressure from employers to forgo some employment standards during the
crisis, notably – the duty to provide due process hearings before dismissals, the prevailing
employment regulations remained intact and unchanged. Formally, two changes introduced
in emergency measures relaxed the requirements set in labour protective legislation. The
first was to forgo the duty to give workers at least two weeks’ notice before an employer
initiates an organized paid leave for its employees12, and the other was to relax a required
approval from a governmental official to terminate women’s employment or putting them
on unpaid leave, during pregnancy or birth-related circumstances13.

   However, general rights and principles governing the ethos of work and which serve as
guidance for the development of employment law in Israel were neglected, notably – the
right to work. Even though the right to work has not been acknowledged by the Israeli
legislator or the courts, the courts stress the importance of work for the individual, as a
source of income and also of personal development, social engagement and fulfilment.
This is seen as part of the individual’s right to dignity under Israel’s Basic Law of Human
Dignity and Liberty. The country’s absenteeism from introducing any employment policy
that secures people’s right to perform actual work to the extent possible (as opposed to
merely securing a degree of continuation in the employment contract) is a breach of such
fundamental rights14.

   A distinct concern that emerges from the responses of the first month, is that the
current scheme does not seem to carefully split the burden of displacement between the
state, employers and workers. The immediate solutions of sending workers to
unemployment insurance, or to draw on their accrued vacation days, do not provide
employers an incentive to increase efforts to leave workers on the job to the extent
possible, even if only partially. Notably absent are measures that accommodate partial
work, rotations, job sharing and other arrangements that will keep as many workers as
possible on the payroll, even if minimally.


12 Annual Vacation Law (1954), Sec. 14; Emergency Regulation (Extending the Agreement on Vacation Leave
for Public Sector Employees due to the New Corona Virus), 2020 (21.3.2020).
13 Women’s Work Law (1954), Sec. 9(a); Emergency Regulation (New Corona Virus) (Women’s Work) 2020

(6.4.2020).
14 The right to work is being used here as a value-laden trajectory and does not reflect the state of the law, in

which the constitutional right to work is underdeveloped, and the Supreme Court has thus far rejected all
constitutional challenges, upholding all the state’s Corona-related emergency measures, despite infringement
of more established rights such as the freedom of movement and the right to privacy.

https://doi.org/10.6092/issn.1561-8048/10794                                                                     4
     Einat Albin                                                                   Italian Labour Law e-Journal
     Guy Mundlak                                                                  Special Issue 1, Vol. 13 (2020)
                                                                     Covid-19 and Labour Law. A Global Review
                                                                                       Section: National Reports




    The differentiated responses further reveal a hierarchy in the labour market, where at
the top are those who continue their work as before, and below them private sector
workers who were relegated to temporary unpaid leave and unemployment insurance,
public sector workers who must fund their absence from work by their own employment
rights, and non-employees who are entitled to lesser grants, which are highly conditional.
Consequently, the current assembly of solutions entrenches previous cleavages between
employees, and workers who are not classified as employees, and deepens distinctions
between a primary and secondary labour markets. The potential for a structural diminution
of this binary classification, after identifying its harmful social impact – accentuated by the
crisis, has not been fulfilled. At the same time, other measures seem to be geared at
fostering a structural change for post-pandemic times, such as a degradation of the public
sector.

    The differentiation further reveals structural disparities in the labour market. According
to statistics of the Employment Service Bureau, 58.3% of the new unemployed registered
in the Bureau during March were women. Gender differences at times of crisis are
reflective of over-representation of women in the public sector, particularly in ranks and
occupations that are easy to dismiss for being non-essential, including education and social
services. In the private sector, over-representation in the hospitality (restaurants, hotels),
leisure (entertainment, sports), administration and retail sectors further contributes to the
over-representation of women among the unemployed15. The response to the crisis
accentuated further de-valuation of women’s work, such as the initial designation of social
workers as being non-essential (later corrected). The absence of protective gear for care
workers in institutions and private households further disadvantages low-waged workers
and women in particular, only augmenting labour market disparities. While nurses and
teachers enjoy greater protection by their respective trade unions, care workers are
exceptionally vulnerable. Measures that are usually deployed to advance gender parity in the
labour market, such as fair representation among the workforce (public sector) and
diversity schemes (in the private sector) have been totally marginalized at the moment of
crisis. There are further concerns that ideas such as favouring the primary breadwinner
(man) in times of mass layoffs, have been introduced after many years in which they were
set aside for their disparate gendered effects,

   The gendered effects of the last month, reveal that all the way at the bottom of the
policy hierarchy – are individuals whose general disadvantage at the labour market is being
heightened at these times. These can be particularly marginalized groups such as sex-
workers, or more general disadvantaged groups. People with disabilities were the first to be
put to leave, paid or unpaid; those who were dismissed found that unemployment funds
decrease their right to disability benefits; and sheltered workshops were shut down, not
providing their workers with welfare rights due to lack of an employment relationship.
Data reveals high levels of unemployment among the Arab population. Migrant workers

15   The list of occupations in which unemployment surged, ICBS data as published in April, 6, 2020.

https://doi.org/10.6092/issn.1561-8048/10794                                                                    5
 Einat Albin                                                          Italian Labour Law e-Journal
 Guy Mundlak                                                         Special Issue 1, Vol. 13 (2020)
                                                        Covid-19 and Labour Law. A Global Review
                                                                          Section: National Reports




and asylum seekers who are generally excluded from the social security system are facing
particular challenges in addressing their immediate economic needs. They all carry a heavy
price of disadvantage as a result of the crisis.




Copyright © 2020 Einat Albin, Guy Mundlak. This article is released under a Creative
Commons Attribution 4.0 International License




https://doi.org/10.6092/issn.1561-8048/10794                                                       6
