The Continuing War and the Workplace: Protection for Spouses of Reservists

Dear Clients and Friends, In light of the ongoing state of hostilities, we hereby update you in relation to a new amendment that provides protection to the spouses of reservists. In accordance with the Veterans (Return to Work) Law, 5719-1949, employers are already prohibited from dismissing employees as a consequence of their reserve service. If employers wish to dismiss employees, who are serving on reserve duty for more than two consecutive days, either during that reserve service or within a period of thirty days after the end of that service, they must apply to an Employment Committee operating within the Ministry of Defense for a permit; the employers will have the burden of proving that the dismissal is not due to the reserve service. Bearing in mind how the scope of reserve service has expanded since October 7, 2023, and the implications for households and for the labor market, the law was amended such that protections were added both for reservists as well as for spouses of reservists. These are the main protections that were added in the amendment: 1. For those serving in the reserves, in addition to the existing prohibition of dismissal, it is now also forbidden to derogate from the scope of the position or the income of the reservist (unless the derogation of income derives from provisions of a law or collective agreement; or stems from a decrease in output of an employee whose salary is paid based on that output, where the decrease in output was not caused by employer-dependent acts).   2. As regards spouses (male or female) of reservists, it is now forbidden to dismiss, as a result of the reserve service, someone who is the spouse of a reservist or the other parent of a child of a reservist. For these purposes, a “child” is defined as someone under the age of 14, as well as an older special needs student. Such dismissals, when made as a result of service in the reserves, are considered void. In addition, as a temporary order to apply, at this stage, through December 31, 2025, the following protections have been established in these cases of a spouse of a reservist who is the parent of such a child during the period of reserve service, when a dismissal is not a result of the service itself:

• An employer that wishes to dismiss, or place on unpaid leave, the spouse of a reservist during the period of reserve service is required to apply to the Employment Committee so as to obtain a permit to do so, if the reserve service is under an “Article 8” Order or has an expected duration of at least 21 consecutive days, and if the employer received written notice from the employee regarding their spouse’s reserve service within three days of the date on which the employer notified the employee of its intention to dismiss them or place them on unpaid leave.
• In this context, unpaid leave that would require application for a permit includes: unlimited leave; continuous leave of at least 30 days; or leave for a period of less than 30 days in instances where in the two months preceding the date of the beginning of that leave the employee has already been on unpaid leave such that the total number of days in which the employee will be on unpaid leave will be 30 days or more.

Please note: Even unpaid leave by agreement that nonetheless fits one of the above definitions requires application for a permit from the Employment Committee. If the spouse of the reservist was already on unpaid leave before the amendment came into force and the employer was given written notice of the reserve service, the employer will have to apply for a permit from the Employment Committee for the continuation of this unpaid leave within seven days from the date of delivery of that notice, in cases of reserve service under an “Article 8” Order or reserve service of at least 21 consecutive days.

• The burden of proof that the dismissal or unpaid leave is not related to the spouse’s reserve service rests on the employer, and the Employment Committee will not grant a permit for dismissal or unpaid leave unless the employee has been given the opportunity to argue his/her claims before the Committee.

Please note: The Employment Committee has been granted the authority to issue an order requiring the employer to continue employing the employee, as well as the authority to levy damages in the event of a violation of the provisions of the law.

• The period of the reserve service of the spouse shall not be counted among the days of the period of prior notice for the employee’s dismissal.
• Absence of the employee during the spouse’s reserve period will not interrupt the continuity of his/her employment and will not affect rights dependent on length of service.
• For the period through December 31, 2024, the requirement to apply for a permit to dismiss the spouse of a reservist will apply not only during the period of reserve service, but for 14 days after the end of reserve service as well.

  3. Please note: The requirement to apply to the Employment Committee for a permit therefore applies:

• In the case of a reservist: for the period of reserve service and for thirty days after the end of the period of service, insofar as that service exceeds two consecutive days.

We note that beyond the protections under the law, in accordance with an Extension Order published last March there is as of now also a restriction on the dismissal of employees, who had served in the reserves, for a period of 60 days after the end of their period of service, in which period of time, the application for a permit must be made to a supervisory committee established for this purpose under with the Extension Order.

• In the case of a spouse of a reservist: Insofar as the spouse meets the conditions set out in the amendment to the law, the prohibitions requiring application for a permit from the Employment Committee apply, at this point in time, until December 31, 2025 as they relate to a period of reserve service; for the period up until December 31, 2024, it is also necessary to apply to the Employment Committee for the period of 14 days after the end of reserve service.

  4. In addition, the National Insurance Law was also amended with a temporary order, which will apply, for now, through December 31, 2024, and which creates an entitlement for payment of a grant to spouses of reservists, at a rate corresponding to unemployment benefits, in circumstances in which that spouse was placed on unpaid leave during the period of reserve service.   5. As part of the passage of this amendment, the Equal Employment Opportunities Law, 5748-1988, was also amended so as to add a prohibition on discrimination with regard to spousal reserve service. In addition, the Law to Increase Enforcement of Labor Laws, 5772-2011, was amended to allow for the imposition of financial sanctions on employers that dismissed or placed on unpaid leave the spouse of a reservist in violation of the prohibitions and restrictions listed above.   We recommend seeking individualized advice for cases in which employers are forced to consider the possibility of terminating the employment of spouses of reservists or placing them on unpaid leave. We will continue to update you and remain at your service, Labour Law Department Herzog Fox & Neeman