A recent National Labor Court ruling, Shalom Rozenberg v. Givun Imaging Ltd., highlighted the procedures to be followed when considering the termination of employment of individuals with disabilities.
The court discussed the fact that according to the Equal Rights For Persons With Disabilities Law, the question of discrimination is intertwined with whether accommodations (known as “reasonable adjustments” in some countries) have been put in place, and the implementation of accommodations is dependent on such accommodation not putting “too heavy a burden” on the employer. This limitation expresses the requirement that employers bear some of the cost of preserving human rights, but only to a certain extent. Since there is no clear definition for “too heavy a burden,” the court has provided various guidelines.
Upon considering the termination of employment of a disabled employee, either because the employee can no longer perform his or her position due to the disability, or due to such position being made redundant (for legitimate business reasons), one main accommodation that an employer may want to consider is identifying whether there is any suitable alternative position for the employee. The employer may want to involve the employee in the process, and give the employee the opportunity to accept or decline any suitable alternative position.
The duty of good faith in employment relations requires the employer to invest sufficient efforts in locating an alternative position, being one that meets the skills and requirements of the employee. This duty is primarily an active duty to make an effort to locate an alternative position, but not necessarily an absolute obligation to locate such alternative position. The scope of the employer’s duty will vary from case to case (depending on the employee’s length of service, scope of disability, and reasons for redundancy), but employers are required to carry out this duty reasonably under the circumstances. Employers may want to conduct the process for locating an alternative position in a broadly open-minded and creative manner provided that such process does not place too heavy a burden on the employer.
In this case, the employee had been employed by the employer for over 10 years, thus placing a heightened duty on the employer. The court criticized the fact that the employer in this case failed to engage the services of an external occupational advisor to assist in the creative thought process to fulfill this new and developing obligation. On the other hand, the employee in this case failed to actively participate in the process and share his thoughts on potential alternative positions, thus not aiding in a successful outcome to the employer’s efforts.
Employers may want to take care before initiating a termination process for disabled employees, especially employees who have a long length of service, and seek legal counsel and a professional occupational advisor where appropriate. Employees may also want to be involved in their employers’ efforts to locate an alternative position. Employers may want to remain open-minded and use creative methods to locate an alternative position, and may want to proceed to termination only as a last resort.
Written by Keren Assaf of Herzog Fox & Neeman and Roger James of Ogletree Deakins
© 2020 Herzog Fox & Neeman and Ogletree, Deakins, Nash, Smoak and Stewart, P.C.