The Israeli Green Pass is only required as a precondition for admission into places that are considered "luxuries", which serves the objective of reducing the violation of non-Green Pass holders’ rights. The Pass is not required for admission to hospitals, clinics and pharmacies, which is necessary for the realization of the right to health, and public places that combine necessary business with the pursuit of leisure (such as shopping centers), have been opened to the public without restrictions.Footnote 3
However, the legislature has not addressed the legitimacy of requiring a Green Pass from employees as a precondition for their continued employment or hiring. As a result, businesses and public places were allowed to open subject to the presentation of a Green Pass by visitors and customers, while their employees were not required by law to prove that they recovered from COVID-19 or that they were fully vaccinated.
In addressing this issue, the Deputy Attorney General of Israel has stated that employers’ managerial prerogative in deciding to require their employees to present a Green Pass should be balanced against the rights of the working individual, including her or his right to autonomy over her or his body and her or his right to privacy. According to the Deputy Attorney General, it is inappropriate to impose a sweeping prohibition on employers to demand a Green Pass from their employees, but it is also unwarranted to establish a general requirement to present a Green Pass without examining whether such a measure is proportionate. Each case should thus be examined in relation to the concrete circumstances of that specific workplace and every employer should also consider the feasibility of less intrusive alternatives.
This issue has been consequently presented to Israeli Labor Courts in two distinct cases of workers petitioning against their employers' requirement to present a Green Pass as a condition for entering the workplace and claiming that their rights had been unduly violated. In both cases, the courts ruled that the employers' demand was legitimate in light of the circumstances. More specifically, one case involved a teaching assistant who was barred from entering her workplace (a school for children with special needs) as she refused to be vaccinated or to present a negative COVID-19 test. In its decision, the court stated that "…In this case, the petitioner was required to present a negative COVID-19 test once a week… this is a proportionate and reasonable requirement. No less intrusive measure could have been taken against the petitioner given the nature of her work as a teaching assistant, which necessarily requires direct contact with unvaccinated children". The court added that "it is difficult to maintain physical distance and full masking given the children’s nature and age…" .
The second case involved a supermarket cashier sent on unpaid leave due to her refusal to get vaccinated or to present a negative COVID-19 test every 3 days. In this case, the court ruled that "…The respondent's decision, made with the consent of the employees' union representatives, is proportionate and reasonable. It was based on a multi-layered [set of] alternatives designed to allow the continued employment of the unvaccinated employees… There is no doubt that the petitioner’s work as a cashier at a supermarket branch involves contact with a large number of customers and with other employees, some of whom may be members of at-risk populations, on a daily basis, a state of affairs which makes the employer's requirement a legitimate one….” The court added that the possibility of giving the applicant alternative tasks which do not involve contact with customers, employees, or suppliers was examined, but found to be non-implementable in practice .
Requiring employees to present a Green Pass as a condition for entering their workplaces is, in our opinion, only proportionate if the following conditions are met: First, employees are given the alternative option of undergoing a PCR or a rapid antigen test every few days; Second, the Green Pass is only required where it is necessary for safe business or venue activity. A Green Pass is a legitimate precondition for safe business activity when it is not possible to maintain sufficient physical distance from other employees or customers in the workplace. This is all the more relevant when we relate to work involving at-risk populations: children—who cannot be presently vaccinated, patients, and the elderly, who may suffer from immunodeficiency. The third condition is that measures against an employee shall begin with the least infringing option (such as a change in position or a requirement to work from home) and will only proceed to unpaid leave or dismissal when less intrusive measures are impossible to apply.
With that said, priority should be given to measures taken by the workplace to ensure that the vaccine is accessible to employees. Such measures include providing the opportunity to be vaccinated during work hours, the granting of symbolic benefits to vaccinees, or coordinating the arrival of mobile vaccination units to the workplace. Such measures would promote a safe working environment and express support for the vaccine efforts that would contribute to society as a whole.