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'The big question is what restrictions are justified'

Employers face legal terra incognita with vaccinated and unvaccinated workers

Reopening the economy requires balancing individual rights, including of inoculation-refusers, with public welfare, experts agree; but the government hasn’t weighed in definitively

Shoshanna Solomon is The Times of Israel's Startups and Business reporter

Consumers and workers at a clothing store at a shopping center in the city of Beersheba, southern Israel, Sunday, Feb. 21, 2021. (AP/Tsafrir Abayov)
Consumers and workers at a clothing store at a shopping center in the city of Beersheba, southern Israel, Sunday, Feb. 21, 2021. (AP/Tsafrir Abayov)

As Israel gradually emerges from its latest coronavirus lockdown, its economy having taken a pummeling, businesses are struggling to figure out how to handle a combination of vaccinated and unvaccinated people returning to work, hampered by a dearth of clear government guidelines.

Since the nation is far more advanced in its vaccination campaign than most others, its handling of the return to normalcy may be a roadmap for the rest of the world as the rollout of vaccinations proceeds worldwide. The challenge of reopening the economy, schools and cultural events calls for weighing the rights of the individual, some of whom who may choose not to vaccinate, against the rights of society as a whole.

Over four and a half million people in Israel have had the first dose of the vaccine and over three million out of its population of 9.3 million have had the second, putting Israel in the lead of nations that have started administering this shot in the arm.

On Sunday, the country began to roll back some of the major restrictions imposed as part of its third lockdown, which began in late December to curb the spread of COVID-19, allowing commercial activity to resume as well as reopening some more schools and grades.

People shop at the Givatayim Shopping mall on February 21, 2021, after it reopened following a few weeks of lockdown (Miriam Alster/Flash90)

Since Sunday, streetfront shops, malls, markets, museums, and libraries have been opened to all. In addition, gyms, sporting and culture events, hotels, and swimming pools are open only to those who have been vaccinated or have recovered from COVID-19 .

As the lockdown eases, with some people vaccinated and others not, troubling questions arise. Can employers force workers to vaccinate? Can they ask workers if they have been vaccinated — and what happens if they refuse to answer? Can employers favor vaccinated workers over others? Can they encourage vaccination by providing stations on site and providing or withholding perks? Where would that leave workers who cannot, for health reasons, be vaccinated?

Earlier this month, Big Shopping Centers, which operates malls across Israel, said it will not allow unvaccinated workers, suppliers and guests to access management offices starting mid-March. On February 10, Israeli tech entrepreneur Shai Wininger, the co-founder and chief operating officer of New York-based insurance firm Lemonade, said in a Facebook post that he will only meet face-to-face with vaccinated people, in a bid to influence those who are on the fence.

A corporate directive coupled with educational sessions can provide both the urgency and the reassurance needed to “move the needle,” wrote Lemonade co-founder and chief executive officer Daniel Schreiber in a December blogpost.

“Governments are—correctly, we think—loath to force people to be vaccinated. But companies can do what governments cannot,” Schreiber wrote. “We—employers—are at liberty to ask employees to comply with safety-at-work rules, and the Covid-19 vaccination should be one of these (with accommodations for rare medical conditions, and even rarer religious strictures). Coupled with educational resources, broad corporate mandates can change the timeline for ending the pandemic.”

The Israeli government has not set out clear guidelines on this matter. Health Minister Yuli Edelstein said earlier this month he was considering proposing legislation that would enable employers to block unvaccinated workers from coming into work; education workers who refuse the vaccine may even have to pay for a virus test every 48 hours if they want to keep teaching. The next day, Raz Nizri, the deputy attorney general, said that the only way to limit unvaccinated teachers’ entry into schools would be via legislation.

Nachum Feinberg of Ramat Gan based attorneys N. Feinberg & Co. (Ofir Abe)

“The government is not keeping up with the pace,” said attorney Nachum Feinberg, whose Ramat Gan-based firm N. Feinberg & Co. set out a sort of “guide for the perplexed employer” at the request of the Manufacturers Association of Israel. The association wanted to give its members a legally backed opinion on what actions to take, for lack of government instructions. “The government was supposed to deal with this issue,” not wait for employers to de facto set out the norms, he said.

“It would have been better to avoid this uncertainty via law,” Feinberg said. “As long as there is no law, the facts on the ground will dictate the tone.”

Professors of law and philosophy at the Hebrew University of Jerusalem have also addressed the matter, issuing a policy paper last week that they submitted to the attorney general, the Justice Ministry and the Health Ministry.

“We felt that the conversation on these issues is really not well structured, and there hasn’t been any policy paper that attempted to analyze these issues,” said Netta Barak-Corren, a Hebrew University associate law professor, in a phone interview. “There were public discussions on social media and some mentions about what and how should be done, and what is justified. But given that there was nothing written that thoroughly analyzes this issue, we thought it would be useful to try and set out a framework of analysis that will be helpful for others.”

The issue in question is uncharted territory that demands identifying the boundary between individual and public rights, awash in gray areas but riddled with red lines that must not be crossed, the experts said.

“It is not a trivial subject and there is no law to guide us, so the way forward is being discussed and thought out,” said Amir Fuchs, a senior researcher at the Israel Democracy Institute, in a phone interview.

Amir Fuchs, a senior researcher at the Israel Democracy Institute (Courtesy)

“It is clear that it is not possible to force anyone to get vaccinated and there is also no law at the moment that allows employers to check workers’ medical status — if they have been vaccinated or not. Maybe the parliament will vote on such a law, but at the moment it is not possible.”

Just as employers cannot demand to know their workers’ sugar levels, so too they aren’t allowed to ask about vaccinations, under the patients’ rights law and privacy laws, Fuchs said.

“You can encourage workers to get vaccinated, but you cannot demand it,” he noted. “If the Knesset passes such a law, which I think infringes on privacy rights, then it should make sure it is proportionate.”

“Asking people if they are vaccinated before they enter stores or entertainment venues or shows is ok, because these are nonessential activities,” Fuchs said. “But the case is different with regard to work, which is an essential activity for a person. You could ask workers to bring you a negative corona test, if they want to come to work. Or they could work from home.”

Check Point Software Technologies, the nation’s biggest cybersecurity firm, had its workers working both from home and at the office in a hybrid model for the past year. Before coming in, employees filled out a form that assessed their level of risk with such questions as: do they use public transportation, are they smokers, do they share a home with elderly people. Based on their answers, they could access certain areas of the workplace.

Now, with vaccinations widespread, the company has been trying to figure out how to juggle vaccinated and unvaccinated workers and return to a semblance of normalcy.

Check Point Software Technologies is issuing a green bracelet to those workers who have been vaccinated (Courtesy)

“We are issuing a green bracelet to those workers who have been vaccinated,” said Gil Messing, head of global corporate communications, in a phone interview. “This will allow workers to move freely between buildings, sit in meetings in the same room with masks, use the fun rooms, the yoga studios. They will get access to all of these benefits that will lead our lives back to what they were pre-pandemic. These rooms, that have been closed since the pandemic struck, will reopen only to those who have been vaccinated or who have recovered from the illness.” Even so, he said, workers will have to continue to wear masks.

Unvaccinated people or those who cannot be vaccinated can continue to work from home, and, if they want to come to the office, they will have to fill out the questionnaire and be subject to more stringent coronavirus limitations.

But the company has decided that starting April 1, only vaccinated workers can come in. Those who are not vaccinated can continue to work from home or show a negative PCR test to come to the office.

Most of Check Point’s employees are vaccinated, according to Messing, and those who are not just haven’t gotten around to it yet and are not ideologically opposed to the idea. “The average age of our workers is 34,” he said. “To encourage those who haven’t yet, we are thinking of bringing the vaccinations to our office.”

These rules apply to all of the 2,400 Check Point workers in Israel, he said. But it could well be that they will spread to Checkpoint offices globally, when relevant. “Many things we start here go on also to our other offices in the world,” Messing said. The firm has some 1,000 workers in the US, all of whom work from home at the moment. Check Point has a total of 5,400 employees, including in Israel.

Israelis receive a Covid-19 vaccine injection and a free alcohol shot in an event organized by the Tel Aviv municipality to encourage people to get vaccinated, at a bar in Tel Aviv, February 18, 2021 (Tomer Neuberg/Flash90)

The Hebrew University experts and attorneys at Feinberg both said that when evaluating public welfare and individual rights in the very specific case of the pandemic, public welfare takes precedence, with correct and proportionate measures in place.

In its policy outline, Feinberg said that until there is legislation, employers can use “proportionate tools” to maintain the safety of their employers.

The lawyers use the existing legal framework to provide answers: employers are allowed to ask workers if they are vaccinated or not, because it helps keeps other workers safe from infection; workers who refuse to answer should be related to as unvaccinated, the attorneys said.

There cannot be a situation in which the individual imposes their will on the public

It is also possible to set up different work arrangements for those who are vaccinated or recovered from the virus and for those who are not, such as allowing face-to-face meetings and entry to the dining room. It is possible to condition the entry of employees into work premises on a vaccination certificate or an up-to-date virus test, and it is possible to reward vaccinated workers with extra vacation days and gifts, the lawyers said. Employers can also set up vaccination stands on work premises, or organize transportation to get workers to vaccination centers.

“There is a mix of rights — on one side individual rights, which are very important rights that no one is infringing, and on the other side there is the need to protect the public,” said Feinberg.

“There cannot be a situation in which the individual imposes their will on the public,” he added. “If you weigh the infringement of individual rights against public rights, the public wins.”

Those who are not vaccinated can choose to work from home, he said, or provide an updated coronavirus test to the employer every 48 hours if they want to come to work. Only if they don’t comply with these demands can the employer furlough them, and eventually, if there is no other solution, fire them under specific conditions, he said. Workers who are unable for health or other reasons to get vaccinated should be allowed to work from home or in an isolated area within the firm, or can be requested to present a updated coronavirus test.

Israelis protest against calls to coerce vaccines; HaBima Square in Tel Aviv, on February 15, 2021. (Tomer Neuberg/FLASH90)

“We are in an exceptional and extreme situation,” one that is new to labor law, the Feinberg attorneys wrote in their legal opinion.

Just as legislation has forced motorbike riders to wear helmets, infringing on their rights to choose, similar legislation needs to be set out protecting vaccinated workers.

“This tension exists all the time – between the individual rights and that of the public – to protect the public,” he said. “A person who travels without a helmet, if he gets hurt, becomes a burden to public funds.”

But the Hebrew University experts say no added legislation is needed, and that an existing Public Health Ordinance can be leveraged to limit the entry of unvaccinated people to public places, or to order specific members of the public to vaccinate, if such measures are needed for medical or epidemiological purposes. These limitations should, however, be “justified and proportionate, moral and legal,” they wrote.

Immunization policy to deal with the coronavirus epidemic and its impact are a “matter of public health and not a unique and personal medical matter,” the authors said in the paper.

People shop at Alrov Mamilla Avenue in Jerusalem on February 21, 2021, after it reopened. (Yonatan Sindel/Flash90)

The Public Health Ordinance was enacted in 1940 to deal with epidemics and serious threats to public health. It gives Health Ministry officials the authority to impose restrictions on unvaccinated people and even require vaccination in certain cases.

“In Israel and elsewhere, navigating the response to the pandemic has involved placing restrictions on individual rights, and the big question is what restrictions are justified,” said Hebrew University’s Barak-Corren. “The conversation is not about physically forcing anyone to get the vaccine, but about whether society can generate rules for people who got the vaccine over those who have not, when opening the market to activities that involve mass gatherings, after a year or so that they have been closed.”

“What we are saying in our paper is that the COVID-19 pandemic is a collective phenomenon that requires a coordinated public health response,” she said. “It is dissimilar to personal medical situations, wherein each person experiences a unique situation and decides for themselves how to deal with their matters. A pandemic that influences many people simultaneously, develops exponentially, and has a widespread effect not only on the health of individuals but also on the economy, education and mental health — requires systemic solutions.”

Hebrew University associate professor Netta Barak-Corren (Courtesy)

The targets of the Hebrew University policy paper are the ministries of justice and health, seeking to convey to them how such measures should be designed, which purposes they should serve, and how to make them proportional, she explained. “Our paper doesn’t exhaust the discussion or resolve all of the difficult questions. We only focus on some of the issues that have arisen” as the nation prepares to reopen the economy and resume normalcy.

Using the Public Health Ordinance to act on these matters is just “the first necessary step to justify restriction of human liberty under Israeli constitutional law,” Barak-Corren said. The state must also prove that its interests in using the ordinance are justifiable, and make sure that the measures used are not “overly restrictive of basic liberties.”

The authors of the Hebrew University paper discuss four justifiable purposes for which the ordinance can be used: to preserve public health; to help economic recovery; to incentivize vaccination; and to place the burden of the choice not to be vaccinated on those who make that choice.

However, the rights of the unvaccinated must be preserved: they must be allowed access to vital activities and needs, such as pharmacies and hospitals, and be allowed when possible to attend events remotely. They should also have the option to access public spaces by showing a recent negative test, to the extent this is possible, Barak-Corren said.

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