(May 11, 2021) In two consecutive decisions last month, Israeli National Labor Court (NLC) Judge Roi Poliak denied appeals challenging the Tel Aviv and Haifa regional labor courts’ rejections of requests for temporary injunctions against employers who required coronavirus vaccinations or frequent testing as a condition for return to work.
The first decision centers on a local authority’s refusal to provide full pay or alternative relief for an unvaccinated special education support aide who was prohibited from entering a school facility for not complying with a requirement to present an up-to-date weekly negative coronavirus test result. (NLC App. Req. 3955-04-21 Avishai v. Kochav Yair Local Authority (April 10, 2021).) The second decision focuses on whether a grocery store cashier who had refused to be vaccinated or tested for coronavirus every 72 hours could be forced to take leave without pay. (NLC App. Req. 22796-04-21, Fikstein v. Supersal (April 13, 2021).)
According to the regional court in the first case, even if the petitioner might at a later date establish a cause of action for a violation of individual rights under Basic Law: Human Dignity and Liberty, her rights had to be balanced against the rights of students and those of the public to life, health, and education. The local authority had a duty to ensure the protection of these rights.
The regional court in the second case similarly recognized testing as proportionate and reasonable under the circumstances. Unvaccinated employees who refused to be tested and could not work from home or another isolated location were placed on annual leave or leave without pay, and were laid off only if there was no other alternative. According to medical assessments presented to the court, in spite of the vaccine’s high effectiveness in preventing infection, vaccinated persons could still contract coronavirus from those who were not vaccinated. In the opinion of the court, the “slight inconvenience” to the petitioner by the test was not proportionate to the potential harm to other employees, or to customers and their families; harm to the functioning of the respondent’s business; and harm from financial expenses resulting from employees falling ill and needing to quarantine.
Both of the regional courts’ decisions considered the joint statement by the chair of the Presidency of the Business Sector in Israel and the chair of the Histadrut (New Workers Union) that recommended that unvaccinated employees who interact with high-risk populations might be required to present a negative coronavirus test result that was updated every 72 hours. The parties further agreed that only when a test was not possible would an employee be transferred to another location or position “subject to employers’ limitations and work needs.” (Joint Business- Histadrut Statement.)
Denying the requests to appeal against the regional courts’ decisions in both cases, the NLC clarified that an appeals court would issue an interim or temporary injunction only in unique cases that required immediate judicial intervention, such as when a lower court had exercised discretion incorrectly on the basis of an error of law or of facts. Out of consideration for the public interest and in light of the Joint Business-Histadrut Statement—even though the statement was not binding—the court determined that there was no justification for judicial intervention at that time. A temporary injunction was not the appropriate procedure for a comprehensive examination of the factual and legal challenges associated with exceptional measures taken to address the coronavirus pandemic. Poliak ordered the regional courts, however, to expedite the handling of the main proceedings in both cases to enable the parties to present evidence and comprehensive legal arguments for adjudicating the issues expeditiously.