Employers’ obligations towards disabled employees in Israel: knowing when and how to accommodate disabilities
Herzog Fox & Neeman, Tel Aviv
Although laws to protect disabled employees in Israel have existed for over 20 years, important questions about the nature and scope of an employer’s responsibilities towards such employees and candidates have remained unanswered. The Israeli National Labour Court recently handed down judgements that shed light on some of these open issues and has provided some helpful guidelines for employers.
According to the Equal Rights of Disabled People Law, 1998 (Disabled Persons Law), discrimination includes the failure of an employer to make the necessary accommodations for the special requirements of the disabled person, which would enable him/her to perform the employment. In the case of Kupolk (1949) Ltd v Michael Chananshvili (Labour Appeal 61235-02-17), the National Labour Court considered the question of what adjustments an employer needs to make to accommodate a disabled employee. Within this they considered what constitutes an ‘excessively heavy burden’ such that, according to the law, the employer does not need to make any accommodation.
In this case, a production worker suffered a head injury during his work, which resulted in him being considered '67 per cent’ disabled. The percentage level of disability is determined by the National Insurance Institute, for the purpose of granting an individual’s rights to benefits. The employee in this case had had a number of absences from work, after which he was certified by an occupational health physician as being able to return to work full-time, but only for specific shifts and without lifting loads above a certain weight. However, since the lifting of such loads was an essential part of his work, the company informed him that it had not been able to find him an alternative job and therefore instructed him to take unpaid leave until he was fit for work.
The Regional Labour Court held that the company had breached the Disabled Persons Law and the company appealed. The National Labour Court determined a number of significant points, which were consistent with a previous Supreme Court ruling. These included that:
- an employer has an active and positive obligation to create the conditions that allow for the employment of people with disabilities and for their advancement in the workplace;
- the obligation to make adjustments is not an ‘act of kindness’ by the employer, but rather that employers are required to reexamine accepted structures, procedures, norms, and practices in the workplace; and
- that an employee's suitability for a position is both a ‘formal’ matter of meeting external, relevant conditions (eg having a license, education or training) and an ‘inherent’ matter that relates to the functioning abilities that go to the root of the job.
Determining whether there is an absence of inherent suitability can only be made in exceptional cases, where there is no dispute regarding a lack of adjustments.
With regard to the type and extent of adjustments that an employer is required to make, the Court held that the adjustments set out in the Disabled Persons Law (‘adjustment of the workplace, its equipment, the requirements of the role, working hours, admission tests, training and guidance, work procedures’) were not exhaustive and the range of possibilities was endless. The employer has an obligation to show that it has made honest efforts to find and make the necessary adjustments to enable the integration of the person with the disability; otherwise the employer will be deemed to have discriminated against him/her. An employer is also expected to seek guidance from relevant professionals, who have expertise in integrating people with disabilities into employment: it is not enough to simply say that ‘all possibilities have been considered’.
Furthermore, the court emphasised that there was no unequivocal or mathematical formula to define what amounts to an ‘excessively heavy burden’. For example, the cost of the adjustment should be considered from a financial perspective:
- whether this is a one-time or ongoing cost;
- the number of employees in the workplace and in the specific role;
- the significance of the cost of the adjustment relative to the size of the employer;
- the scope of the activity and the profit cycle;
- whether the employer is private, public or hybrid;
- whether the adjustment is required for a long-standing employee or a new candidate;
- the inconvenience to other employees;
- whether an application has been made for external or state funding for the adjustment; and
- whether the employer previously invested funds to make adjustments.
It should be noted, however, that the Court stated that the required adjustment would not necessarily include paying a salary in line with the employee's earnings before his/her injury.
In Tichtovet Brom v Yehudit Borachov, the National Labour Court (Labour Appeal 34784-10-16) considered the fundamental question of who is a ‘person with disabilities’ and how the employer is meant to identify them. The Court determined that the definition of a ‘person with disabilities’, as defined by the Disabled Persons Law (‘A person with a physical, mental or cognitive impairment, whether permanent or temporary, whose functioning is substantially limited in one or more of the main areas of life’), should be interpreted flexibly and widely, without there being a need for ‘severe’ disabilities. In particular, it was acknowledged that even a person with what might be considered a slight disability can still suffer from resultant social exclusion. Furthermore, the determining of any percentage disability by the National Insurance Institute, as mentioned above, was irrelevant. There was no particular requirement for the employee to present a medical certificate stating explicitly that he/she was a person with disabilities and the effect of the disability in one main area of life did not have to be on employment.
The Court did recognise, however, that not every health problem seriously interferes with routine functioning. In this context, it added that it was justifiable to apply the law only to those that met the statutory definition, in order to prevent abuses of the law. The law is aimed at protecting a person with a disability who, without the law, would have difficulty integrating, working, earning a living and progressing, or would suffer other harm in realising his/her potential or full and equal participation in various areas of life.
The court also found that, in order to conclude that a person's functioning is indeed severely limited, a critical mass of physical, sensory, mental, cognitive, intellectual or social dysfunction (including as a result of stigmas and prejudices), is required. The court ruled that ‘substantial’ (in the definition of a person with disabilities) should be interpreted in an obvious way and is not limited or marginal. However, even without the direct application of the law, the employer should consider the medical situation and act with understanding and flexibility towards an employee who has any constraint or personal problem. The employer is required by case law to try to find an alternative job that matches his/her qualifications and the needs of the employer.
Regarding the issue of the employer’s knowledge as to whether or not a person has a disability, the court found that, as a rule, and except where circumstances justify a different finding, an employee that asks to apply the protections of the law to him/herself should notify the employer of this. This is particularly the case where the disability is not apparent. When doing so, the employee is expected to inform the employer that he/she is a person with a disability, and provide the required facts in a reasonable way. The Court emphasised that an employer should not need to examine, on its own initiative, medical documents that it may have from the past (such as sick leave certificates or periodic examinations). Furthermore, they should not have to find out that an employee has a disability through any medical problems that the employee may have and that could theoretically bring the employee within the legal definition of a person with disabilities.
We would add that the Court made a link between the employer's obligation to find an alternative job for an employee with a disability when making a redundancy dismissal, and its obligation with regard to the fair representation of employees with disabilities in the workplace. In this regard, according to an Extension Order in Israel, employers with at least 100 employees are required to have ‘fair representation’ of persons with disabilities in the workplace, meaning that at least three per cent of employees fall within this category. The Court pointed out that it could be argued that the duty to find an alternative job for such an employee applies as long as the employer cannot prove that there is full employment of persons with disabilities already in the workplace. However, this specific issue, having been stated as an incidental remark, currently remains unresolved.
Moreover, that there has been a developing trend in recent Labour Court rulings that, before proceeding with terminations, employers have a ‘duty to make an effort’ to locate an alternative position for certain groups of employees, including for those close to retirement and the disabled. In Shmuel Vagman v Galil Engineering Ltd (Labour Appeal 67949-09-16), the National Labour Court held that this duty had both substantive aspects (to consider the organisation's needs, vacant roles, suitability for positions, impact of staffing a position on the workplace/department), and procedural aspects (to follow a proper procedure to find alternative employment, to include the employee, etc) and that the amount of effort required could vary from case to case. This duty was found to stem from the employer's obligation to act in good faith and with transparency, rather than in response to the discrimination legislation.
The aforementioned examples show that an employer's obligations towards those with disabilities can be sensitive and complex, be this from the acceptance of candidates with disabilities, the consideration of any necessary adjustments to working conditions, or the procedures to be implemented when considering the termination of employment. The above National Labour Court rulings have indeed clarified certain matters, but many questions remain open and this will not be the last word on the matter.