Vaccinations and work: what the employer may demand, and what it may not do

Service page: Unlawful dismissal: when, what you are entitled to and how to sue.

Can an employer require you to be vaccinated?

No. No law in Israel requires vaccination as a condition of employment, in either the private sector or the public sector. Even at the height of the COVID-19 pandemic, the state did not require employees to be vaccinated. It made entry to certain places conditional on a “Green Pass”, which also allowed the alternative of a negative test.

The full answer is more complex, because the law spreads it across several principles that clash with each other. The first is the right to autonomy over one’s body and to privacy, anchored in Basic Law: Human Dignity and Liberty. The second is the employer’s duty to provide a safe workplace for its employees and for those who come into contact with them. The third is the rules on collecting medical information under the Protection of Privacy Law, 5741-1981. When the principles clash, the Labor Court balances them according to the circumstances of the workplace. That is exactly what happened in the case that shaped this area.

The Kochav Yair teaching assistant case (March 2021): what was reported in the media

This is a case that was reported in the media. A teaching assistant at a school in the Kochav Yair–Tzur Yigal Local Council refused to be vaccinated and also refused to be tested for COVID-19 every week. The council prevented her from entering the school, and the assistant asked the court for a temporary order to return her to work. According to the report in Davar (in Hebrew, 21 March 2021), the Tel Aviv Regional Labor Court rejected the request. It held that the employer may prevent the entry of an unvaccinated employee who refuses to present a negative test, because at this stage it cannot be determined that her right to dignity and privacy outweighs the right of the students, parents and staff to health and life.

Three important points in this decision that many people miss:

• It is a decision on a request for interim relief, not a final judgment. The court decided on the balance of convenience, not on the question of principle.
• Keeping her away was allowed, not dismissal. The employee remained an employee of the council. The question of her wages during the period she was kept away was left to the main proceeding.
• The test is the heart of the matter. The employer did not demand vaccination alone. It offered a less intrusive alternative. The proportionality of the demand was examined through that alternative.

According to the report, the court also noted that it would have been better to regulate the matter by legislation or by collective agreements, and that until then employers should not be left without proportionate tools. That regulation did not come. The Special Powers to Deal with the Novel Coronavirus (Temporary Provision) (Green Pass for Employees) Regulations, 5782-2021 (תקנות סמכויות מיוחדות להתמודדות עם נגיף הקורונה החדש (הוראת שעה) (תו ירוק לעובדים), התשפ״ב-2021), the “Green Pass for employees”, were a Temporary Provision and expired. Today the question is again a matter of case-by-case balancing. Because the decision depends on the circumstances of the workplace and not on a rule of thumb, legal support in the employer-employee relationship is better here than relying on a single precedent.

When can a demand for vaccination or testing be legitimate?

• Contact with a vulnerable population: health and nursing institutions, kindergartens, and settings for people with disabilities. The higher the risk to others, the greater the weight of the employer’s interest.
• An alternative exists: a demand that offers an alternative route (periodic testing, remote work, protective measures, a temporary change of role) will be considered much more proportionate than a demand of “vaccination or nothing”.
• Official guidance: an employer acting under valid guidance from the Ministry of Health or under regulations in force stands on firmer ground than an employer that set its own policy.
• Transparency and process: a written policy, given in advance, with an option for the employee to state their position before any harm.

Outside such circumstances (in an ordinary office, with no contact with a vulnerable population and no alternative), a sweeping demand for vaccination as a condition of continued employment is a legal problem for the employer, not for the employee.

What the employer is not allowed to do

• Dismiss without a hearing. The duty to hold a hearing applies to every dismissal, and dismissal for refusing vaccination is not an exception. Even when the employer has grounds, the lack of a hearing makes the dismissal defective and entitles the employee to compensation (see Pre-dismissal hearing: what must happen and when).
• Disclose medical information. Vaccination status is information about health: “information of special sensitivity” under section 3 of the Protection of Privacy Law. Publishing a list of “unvaccinated” employees, passing the information to customers, or using it for a purpose other than the one it was collected for can all be an invasion of privacy. On the limits, see Monitoring employees: the limits of the law.
• Discriminate without a relevant connection. A distinction between employees must be linked to the actual risk and to the role. Denying a promotion or a bonus to an office employee only because of their vaccination status is hard to justify. When a refusal stems from a medical condition, the laws prohibiting discrimination on the basis of disability also apply.
• Deduct wages without a basis. Keeping an employee away in a way that is not proportionate, or without offering an alternative, can make the employer liable for wages for that period.

What it is worth in money: an example

An employee kept away from work without pay for 10 working days, at a daily wage of NIS 350, is in a dispute over NIS 3,500 for that period alone. If being kept away lasts two months, about NIS 15,000. If the employee is eventually dismissed without a hearing, compensation for unlawful dismissal is added, which the Labor Courts award according to the circumstances of the case and the employee’s seniority. These amounts are the reason to document every stage, and to get advice before signing “consent” to being kept away or to the end of employment. The tools for claiming unpaid wages are explained in the guide Late salary in Israel: when and how to sue the employer.

What should you do if you were harmed?

1. Document everything immediately. Keep every written instruction, email and WhatsApp message. For an oral instruction, summarize it in an email to your manager (“As we agreed this morning…”).
2. Ask for the policy in writing, and for the alternatives the employer offers. A refusal to offer an alternative is itself evidence.
3. Demand a hearing before any harm to your conditions or your employment, and come to it with a written position.
4. Apply to the Regional Labor Court for a temporary order against being kept away or against dismissal, and with a claim for wages and compensation (Proceedings in the Labor Court: a guide). If medical information was disclosed, you can also complain to the Privacy Protection Authority.

An overview of all employment rights is in the employment law information hub.

Frequently asked questions

Can an employer dismiss an employee who refuses to be vaccinated?

Not automatically. The decision in the Kochav Yair teaching assistant case (2021) allowed keeping the employee away from the workplace temporarily, not dismissal, and only after she was offered the alternative of periodic testing. Dismissal requires relevant grounds, a proper hearing and considering alternatives: remote work, testing, a change of role. An employer that dismissed without such a process is exposed to a claim for unlawful dismissal.

May my employer ask me whether I was vaccinated and record the answer?

Information about your health, including your vaccination status, is “information of special sensitivity” under section 3 of the Protection of Privacy Law, 5741-1981. An employer may ask for it only when it has a relevant and proportionate need, for example to decide on work arrangements or on entry to the premises. It must keep the information secure, must not pass it on to other employees, and must not use it for another purpose. Disclosing the information to a third party without consent can be an invasion of privacy.

I was kept away from work because I wasn’t vaccinated: am I entitled to wages for that period?

This is a question the Labor Court left open in its interim decision in the Kochav Yair case. The employee received wages up to the date of the decision, and her rights after that were left to be decided in the main proceeding. The answer depends on whether keeping you away was proportionate, whether you were offered a reasonable alternative (testing, working from home), and whether the employer acted under valid government guidance. Document every offer and every refusal, and get advice early.