Guest Contributor: Russell D. Mayer, Adv.

Israel’s labor laws have, historically, been pro-employee but even more so with respect to protecting women.  The labor laws address three major issues unique to women: affirmatively protecting the special needs of women with respect to pregnancy, avoiding discrimination against women and prohibition against sexual harassment.

According to the Employment of Women Law, 5714 – 1954, if a woman has been employed by an employer for at least 6 months, she becomes entitled to the protections of the law including that her employer may not terminate her employment, nor materially worsen her employment conditions, while she is pregnant and for 60 days after she returns from maternity leave, without first having received a special permit from the Minister of Economy and Trade.  It is important to stress, that even if a woman was employed for a shorter period, terminating her employment may still violate the woman’s right to equality in work.  Moreover, according to the law, a pregnant employee is entitled to unique protections and benefits such as limitation on additional work hours, limitation on work in proximity to radiation, etc.

During the pregnancy, a woman who works full time (generally considered 182 hours per month), may be absent from work for up to 40 hours, with pay, in order to receive medical treatments related to the pregnancy. In the event that she works less than full time, her entitlement is prorated to the number of hours she works per month (compared to a standard 182 hours per month).

We are frequently asked as to at what point in a pregnancy an employee must disclose her condition to her employer. Notwithstanding common misconception, a pregnant woman generally does not have an affirmative obligation to advise her employer of her condition. On the basis of good faith vis-à-vis the employer and in order to benefit from various employee rights, women are advised to inform their employer by the 5th month of pregnancy. Upon notifying her employer, she is entitled to various provisions intended to protect her such as being exempt from overtime or from working during her weekly rest. However, a woman who is employed in a position in which her pregnancy might prevent her performing a specialized job which may cause her employer a significant financial loss due to her absence (such as an events manager) or may put her health at risk (i.e. – a woman who is exposed to hazardous materials as part of her job), is obliged to notify her employer even earlier.

An employee who has worked consecutively for her employer for at least a year, is entitled to 26 weeks of maternity leave of which 15 weeks are paid by Bituach Leumi (the balance is leave without pay). A woman who worked at least 6 out of 14 months preceding her maternity leave will generally be entitled to 8 weeks of paid maternity leave. Maternity leave can be shortened to no less than 15 weeks if the employee worked for at least 12 months preceding the maternity leave (in that case, the spouse can split the leave after the first 6 weeks, should the mother wish to return to work at that stage). A pregnant woman can take up to 7 weeks of her maternity leave before the anticipated date of birth.

The father is entitled to paternity leave provided that the mother has taken at least 6 weeks maternity leave, in place of the mother’s leave for the number of weeks she is entitled to. The maximum length of paternity leave is up to 20 weeks, provided that both parents were employed for at least 12 of the previous months with the same, respective, employer, and up to 15 weeks, if only the mother were employed for at least 12 of the previous months with the same, respective, employer, but not the father. Paternity leave allowance is calculated according to the father’s salary.

A woman who gave birth and works at least 174 hours per month, or a full time job as practiced at her work (the lower between the two), even in a new job, is entitled each work day to a “parenting hour” (previously known as the “nursing hour”) for a period of 4 months from the end of her statutory maternity leave (there are public sector positions in which the right extends for a period longer than 4 months).

A parent of a child who is not handicapped, can use up to 8 of their sick days for the care of their children up to the age of 16 provided that the other parent works on those days and the parent who takes off, has sufficient, accrued sick days available – sole parents can take up to 16 days per year if they have sufficient, accrued sick leave.  Please note that as is the case for all sick leave, by law, the first day of each event is without ANY pay, days 2 and 3 are at the rate of 50% of salary and from the 4th day and on for a sick event, the person who receive full salary.

A woman who accrued sufficient time for entitlement to severance pay, can resign from her position within 9 months of having given birth stating in her advanced, written notice of resignation that she is doing so in order to care for her newborn in which case her resignation will entitle her to severance pay (if she had worked for that employer for at least one year, including the paid maternity leave period.

Prospective fathers and mothers are entitled to use accrued sick leave for fertility treatments provided that their doctor indicates in writing that it is necessary AND provided that they notify their employers within a reasonable time in advance of the absence (depending on circumstances). The maximum number of absences for fertility treatments is set by law – in the case of the father, limited to 12 days and in the case of the mother who works a 5 day work week, for up to 4 treatment cycles of up to 16 days each treatment cycle and not to exceed 64 days per year.

A prospective parent may not be fired during the fertility treatments and for a period of 150 days after the legally entitled absences, without the approval of the Minister of Economy and Industry and the minister will not give that approval if it is determined that the termination was due to the fertility treatment absences.

The Equal Employment Opportunities Law – 1988 (the “Equal Opportunity Law”) prohibits employers from discriminating among or against their employees or employee candidates on the basis of gender, sexual orientation, personal status, parenthood, age, land of origin, opinion or party, reserve duty, religion or nationality.  The Israeli courts have held that this list is not exclusive as other discriminatory concepts can be considered violative of the Equal Opportunity Law.  The acts to be considered in determining whether prohibited discrimination has transpired include those which take place in the course of hiring or interviewing candidates, in setting employment conditions, in determining promotion opportunities, the termination of employment, payment including the amount of severance pay, setting of retirement benefits, establishing extraneous conditions, etc.  A distinction which might otherwise be considered discriminatory may not be prohibited if the character or substance of the position or job requires that distinction although an employer would need to be sensitive to the complex issues and consider the likelihood that it may open the employer to a potential claim.

Based upon the above, while it is not prohibited by law for a prospective employer to ask a prospective employee about the employee’s marital status, family status or family planning, an employer would be ill advised to do so since it opens the door to a claim from a rejected prospect that the rejection was due to the answers to those queries of the interviewer and the rejection for those reasons would violate the law.

The protection for women who are pregnant, etc. includes the prohibition of the employer’s materially worsening the employment condition of the employee or otherwise trying to cause the employee to resign.  The current trend of putting employees on Halat (leave without pay), would fall under this category. Following the flood of requests for permits from the Ministry of Labor as the Israeli economy essentially entered a shutdown due to COVID-19, the Knesset recognized that the vast majority of permits were being granted since the employers were generally not exhibiting discriminatory practices, rather last resort, companywide downsizing efforts in order to stay financially afloat. As a result, the Knesset passed the Emergency Regulations (New Corona Virus) (Women’s Employment), 5780-2020, which exempted employers from the need to receive special permission from the Ministry of Labor in putting protected women on Halat. However, these emergency regulations were temporary and have since lapsed (mid-April 2020). As a result, employers of women protected by The Women’s Employment Law, 5714-1954, will again have to obtain the approval of the Ministry of Labor before putting a protected woman on Halat.

From 1988 until the late 90’s, the issue of sexual harassment in the work environment had been vaguely addressed by applying the Law of Equality at Working Places – 1988, until it became evident that the provisions of the law were insufficient to address the world-wide revolution regarding sensitivity to harassment. The Law for Prevention of Sexual Harassment – 1998 was the legislative response to the phenomenon as it sets a number of strict rules regarding different types of behavior which are considered to be prohibited sexual harassment. The stated purpose of the law is to prohibit sexual harassment in order to protect a person’s dignity, freedom and privacy as well as to promote equality between the sexes.

The law sets forth certain acts that are considered de facto to be sexual harassment, yet it is worded in such a way as to prohibit acts which, even though not specified in the law, can still be prohibited. The list defined in the law includes among others, extortion on a sexual basis, continuing sexual proposals which are rebuffed, repeated behavior addressing the person’s sex or sexual preferences or humiliating someone based on sex or sexual preferences. The law prohibits sexual harassment by supervisors and colleagues, the creation of a sexually charged environment and certain obscene acts and can be applied to harassment of both women by men or men by women or between people of the same sex.  Notwithstanding that the law, on its face is intended to be unisex in its protection, the law was adopted primarily to protect women from harassment by men.

The provisions of the law are quite strict. For example, any repeated insulting, humiliating or embarrassing behavior of a direct superior towards an employee might be considered as a prohibited sexual harassment even if the employee never explicitly “objected”. The law is more flexible when addressing behavior between two colleagues – in order for the behavior to be considered as prohibited sexual harassment, the harassed party must have expressed discontent or opposition. The purpose in the distinction in relationships is that an employee is typically in a subordinate position to his or her employer and, therefore, the employee may be more reluctant to express opposition to the objectionable act for fear of losing his or her job, promotion, etc. It is important to stress that the law also gives protections to individuals who submit complaints of sexual harassment, testify on the matter and so on.

In addition to the above basic provisions of the law, there are regulations which set rules and procedures which employers must follow in order to protect their employees and prevent sexual harassment at the work place. For example, the employer must instruct supervisors to be aware of the possibility of sexual harassment at the work place and to take the necessary measures to prevent their occurrence and to address complaints should they arise. The employer must arrange a convenient and appropriate grievance procedure for submission of complaints regarding sexual harassment. In work places employing over 25 employees, the employer is obliged to follow additional provisions to prevent sexual harassment.

The Law for Prevention of Sexual Harassment, 5758 – 1998 sets both tort and criminal responsibility. The penalty may be a monetary fine and/or imprisonment.

This article is not to be considered as a legal opinion. For legal advice, we suggest that you contact legal counsel directly

Russell D. Mayer is senior partner at the Jerusalem-based law firm of Livnat, Mayer & Co. (www.LMF.co.il). If you have any comments or questions with respect to this article, please contact Russell at mayer@LMF.co.il

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