Employer Responsibilities and Employee Rights During a Pandemic (Narrative Source Sheet)

Jeanette¹, a young woman living in Baltimore, was employed as a sub-contractor at an airport and has struggled to make ends meet after she was laid off at the start of the pandemic. Even with unemployment, she does not have enough to support herself, her child, and other vulnerable family. Nevertheless, she is unwilling to go back to work until she feels it is safe to do so; “safe” meaning both fair compensation and secure conditions. This young woman’s story exemplifies the questions we are asking about employer responsibilities to employees in the pandemic and risk evaluation for those considering returning to work. In this narrative source sheet, we will be bringing sources - halakhic, aggadic, philosophical, and more - to try and think through some of the dilemmas faced by this young woman and by the millions of people affected by the pandemic.
We will begin with some opening sources highlighting the general approach of Jewish texts to workers. In these framing sources we see that laborers are viewed as full people to whom the employer is significantly obligated. From there we will ask the question: are employers required to pay their employees while they are not working due to the virus? In section three we move to thinking through how to approach the question of returning to work while there still remains a risk of contracting the virus. The sources we study will try and balance an obligation to preserve our lives and health with the reality that labor is often risky and there is a need to earn a living. Jewish sources, however, will require us also to think through this risk assessment on a communal level rather than simply as individuals. We will end with a list of guidelines for how employers should think about their responsibilities to their employees, particularly regarding questions of safety and returning to work, for those who are interested in a Jewish ethical approach to these problems.

Section 1: Basic Ethical Approach to Employer-Employee Relationships in Jewish Sources

The sources that we open our discussion with represent perhaps an idealistic approach for employers to take towards their employees. These sources go beyond discussing the basics of compensation to question how one ought to compensate a worker and even whether one can ever really fully compensate a human being. They emphasize the human value of laborers -- who can easily be seen as lesser by their employers. We bring these sources to contextualize and trouble the more pragmatic ones about direct compensation for labor that we will discuss later. These foundational texts are included here because they push us to act maximally towards our employees as fellow humans, and simultaneously circumscribe the power of the employer towards his more disadvantaged employee.
The first text we bring is a foundational source for all business ethics in Judaism - Deuteronomy 24:14-15 reminds the Israelites to not abuse their employees and requires they be paid on time. But more than simply being about compensation, this verse warns that mistreating a laborer is an offense against humanity, history, and of God.

The two following sources address how employees are seen as people of infinite worth with regard to their employers. We begin with the classical source in the mishna which asks whether an employer contracting Jewish employees needs to be very precise with regard to stipulations (in this context regarding food) or if we can simply hold the employer to the standards of local custom. Rabbi Yochanan ben Mattia, a tanna mentioned in the Mishna, worries that if the compensation is not stated very precisely then there is no maximum limit to what the employee is owed.

The 20th century Jewish philosopher, Emmanuel Levinas (1905-1995), expands on this source to discuss the limitless duties of the employer to the employee and of humanity to each other, a central theme in his ethics.

These two sources force employers to see their employees as equal beings to whom they are truly in debt. In the Babylonian Talmud, Bava Metzia 83a illustrates these ideals through an aggadic narrative. Although we might have thought that we are not required to compensate a worker for a job poorly done, this story presents a case where we are required to pay incompetent laborers because they are hungry and worked all day. The narrative ends by saying that this is the law, and not simply the ideal or an action “lifnim mishurat hadin” (beyond the letter of the law), complicating the baseline halakhic approach, explored below in section two, that you only must pay a worker who performed the requested labor.

Section 2: Is an employer required to continue to pay their employees, assuming they can’t work?

Now we turn to our first question - are employers required to pay their employees who are not working during the COVID-19 pandemic? First, we want to be clear: employees who have continued to work - whether as essential workers outside the home, or those who can work virtually - are clearly required to be compensated even if the nature of their work had to adjust to new circumstances. The texts below only apply to those who had to cease working, such as waiters, actors, retail workers etc., including the airport sub-contractor with whom we opened our discussion.
Of course, when looking at pre-modern rabbinic texts we see neither a direct correlation between the systems of employment in place today and those in place in the rabbinic period, or between the types of circumstances that might have prevented labor then and our current pandemic. We have to use a certain amount of imagination to learn from these sources about our current dilemmas. These texts, however, present insights into how to treat and compensate workers when there is suddenly no work to be done.

A. General principle: You Get Paid for the Work You Do

First the general principle in Jewish business ethics - workers are compensated exactly for the work they do. There are numerous sources that speak to this; here we bring the authoritative ruling of the Shulkhan Arukh (a legal code written by 16th-century Spanish authority Rabbi Yosef Karo).

According to this ruling, one does not pay a contracted laborer if on the day of employment the river has dried up and there is no work to be done, even though the lack of work is not the laborer’s fault. Nevertheless, recall our earlier narrative from the Talmud in Bava Metzia 83a where - in direct contrast to the above ruling - Rabba Bar Bar Channan is required to pay laborers who failed by their own fault to perform their task and damaged his property to boot. Although the ruling by the Shulkhan Arukh may represent the codified minimum standard, the story of Rabba Bar Bar Channan enjoins us to uphold a higher moral principle when dealing with issues of labor ethics.

B. Makat Medina: A General Catastrophe

Although we might liken a pandemic that halts economies to a river that has stopped flowing, we believe COVID-19 does not fit the general principle outlined in the Shulkhan Arukh. Instead, we want to invoke the category of Makat Medina - regional disaster - which appears first in the Mishna in a discussion of land tenancy and is expanded in later Medieval sources (the Rishonim) to ameliorate inequities that arise between employers and employees in a case of a disaster that affects both parties (please see the guidelines developed by Raphael Magarik and Tamar Zaken on this topic and rent). Makat Medina can be used to require the employer to compensate their laborers (at least partially) because the loss caused by the disaster affects everyone. There is however, disagreement among authorities, about how broadly (and even whether) it can be applied. The concept first appears regarding rental agreements in Mishna Bava Metziah 9:6.

The Rema (Rabbi Moshe Isserles, 16th-century Poland) on the Choshen Mishpat 321, rules that we can invoke Makat Medina to require an employer to compensate the laborer in a case of a regional disaster. The Rema extends the concept of Makat Medina outside of a rental or even agricultural context like the Mishna above, to a case that includes a disaster that prevents teachers from teaching. This expands Makat Medina from rental contexts to other cases of missed labor where the fault does not lie with the worker. In so doing, the Rema shifts us from the perspective offered by the Shulkhan Aruch above - which focused on 'loss' for the employer - and suggests, instead, that we should focus on loss for the workers.

Not everyone agrees with the Rema’s extension of the concept of Makat Medina (for one significant example see the Sefer Me’irat Eynayim, Choshen Mishpat 334). However, others like the Hatam Sofer (18th-19th century, Hungary), would build on the Rema’s logic; for the Hatam Sofer, the Rema’s ruling would prove helpful when asked about paying school teachers during a Napoleonic War when teaching had to be suspended. This case applies relatively nicely to the COVID-19 pandemic and employment questions, since teachers were regular employees contracted for a lengthy period of time, who suddenly found it impossible to work due to circumstances far beyond their control. The Hatam Sofer picks up on the consistent apportioning of blame for the monetary loss in the sources on Makat Medina: that is, whose “bad luck” is at fault. In this case, the Hatam Sofer feels that it seems inappropriate to apportion that blame or “bad luck” to the teacher. Due to this reality he suggests making a compromise (pshara) wherein the teachers are paid half their normal salary. It is important to note that the Hatam Sofer expresses much uncertainty about his decision (it is unclear exactly where his uncertainty lies), and we too should hold together the sense that these cases are complex and tragic, and do not always have a clear, neat halakhic solution.

In the context of the COVID-19 pandemic we feel strongly that the principle of Makat Medina should apply. Due to the reality that some employers are also taking an extremely heavy loss at this time, and because neither the employer nor the employee can be held accountable for bringing about the pandemic that made work impossible, the concept of pshara or compromise could be invoked to offset the loss of both employers and employees. We also realize that some of the complications of the contemporary social safety net might affect decision making (e.g., employees might actually in some circumstances be paid more by going on unemployment than their employer can provide at this time). For those interested in learning more about the concept of Makat Medina and how it applies to the pandemic we highly recommend the shiur and source sheet from earlier this year by Rav Asher Weiss, linked below. His analysis and sources were very helpful to us in developing our thinking on this subject.

Rav Asher Weiss, shiur on Makat Medina (and Covid), 5780. http://www.torahbase.org/makas-medina/

Section 3: When can an employer insist that an employee return to work? When can we ask employees to take on risk?

When we spoke with the young woman employed as a subcontractor at an airport, she told us quite emphatically that she was not prepared to return to work until she felt that it was truly safe to do so. She reported this even though she had just described how hard it was living without a steady wage in the pandemic. Her unwillingness to return to work in the midst of the pandemic points to a significant Jewish value (and part of human nature): to safeguard oneself against risk, even while taking a loss in income.
Starting in Deuteronomy we are told to take care for our bodies, protect ourselves, and secure our homes. Later sources build on these verses to create a strong imperative to avoid risk in most cases and to ensure health. However, the rabbis also have a clear eyed view of labor, and the need to earn a living, and the risk that might ensue. Therefore, many halakhic texts make room for taking on some level of risk in order to gain and keep employment.

A. General Requirement to Safeguard Life

We begin our discussion by bringing sources that develop the central principle of safeguarding life. Much of this discussion, often referred to as pikuah nefesh, relies on Deuteronomy 4:9 which warns the Israelites to take “utmost care.” The original verse refers to the Israelites taking heed to not forget God and God’s law, and the rabbis then infuse the meaning of safeguarding life into the verse’s language. From there the Babylonian Talmud in Brachot elaborates the idea that one should disregard the ideal halakhic practice in order to protect one’s life.

This sugyah (passage) is the beginning of the development of the language of pikuah nefesh and the principle of safeguarding life, which is always operating in the background of halakhic discussions regarding risk, health, and danger. See the language of the Shulchan Arukh for this idea stated explicitly:

The sources above outline a negative imperative to protect yourself from risk. Maimonides (1135?-1204, also known by the acronym of his name, Rabbi Moshe Ben Maimon, as “Rambam”) casts this command positively in Hilchot Deot, describing an entire regime to be healthy in order to be a better servant of God. We only bring a small selection here, but recommend looking through this entire section wherein he describes a full (often very modern-sounding) health regimen.

B: Allowable Risk for the Sake of Labor

Although the sources above make clear that the ideal is to never endanger the body, already in the times of the Talmud the rabbis understood that laborers would be required to take risks in order to simply sustain themselves and their families. Work was often somewhat dangerous in pre-modern times, even in the Beit Hamikdash (see Mishna Shekalim). More modern poskim would elaborate on the risks an employee could take to earn parnasa, their living, allowing people to take on jobs that were known to have a chance of injury. These sources address the risk an individual can take for employment and speak less to employers’ responsibilities for their workers. However, any source that questions acceptable risk for a worker clearly speaks to the need for protections provided by employers (and see the section below on worker protections). These modern poskim remind us, however, that these risks must be weighed against other factors including the extent of the risk, expert opinion, and possible risk to others.

Mishnah Shekalim 5:1 outlines different leadership roles in the Temple (Beit HaMikdash). It mentions that there was an overseer of the “sickness of the bowels.” Obadiah Bartenura (15th-16th century) elaborates in his commentary on the Mishna that a certain bowel disease was common among the kohanim due to the nature of their work in the Beit HaMikdash.

We bring this source to illustrate that even working in the holiest of places carried some risk, and the bureaucracy within the Beit HaMikdash was set up to accommodate the potential for illness among its “employees.”

Now we turn to a modern teshuva from the 20th century preeminent American authority, Rabbi Moshe Feinstein, that goes directly to our question. In this teshuva Rav Moshe answers whether one can make a living by playing ball (the type, unspecified) even though there is a risk of injury to both one’s self and to other players. Here we have a clear question of risk evaluation: a potentially lucrative career that carries some particularly notable, but “far off” risks. Rav Moshe emphasizes that one must be aware of the risks and take them on out of one’s own free choice when agreeing to such a risky profession. He ends by saying that no employer can require their workers to take on risk, leading us to believe that an employer cannot force their workers to return to the office in the context of the COVID-19 pandemic, and must be completely informed about the risk they are taking on before they return.

Rav Moshe leaves us with the idea that some level of risk is acceptable for employment. Another 20th century European posek, the Chelkat Yaakov (Choshen Mishpat, Siman 31), in a lengthy teshuva about plastic surgery, goes into more detail about how to evaluate risk, the fact that risk evaluation is often a personal endeavor, and what might be considered “reasonable risk.”⁴ He also argues that a trusted medical expert must indicate that the act being undertaken complies with scientific standards of safety.

These points, in addition to Rav Moshe’s teshuva, imply that it is acceptable in some cases to take on a level of risk for employment or personal gain, but that this is a delicate balancing act between one’s health and one’s financial stability.

Our ethics are not only informed by texts, but also by what we see in the world around us. Implicit in these sources is the sense of hopelessness, need, and desperation that going without work can cause. The photography of Dorothea Lange, who is famous for documenting migrant workers during the Great Depression, powerfully illustrates just what poverty and joblessness looks like, showcasing why humans have always taken on some amount of risk in order to earn a living.

In tension with the sources above, there is a textual tradition to limit risk to others that is used in contemporary sources to argue for protections for employees in the workplace. If our sources above acknowledge the reality of risk in the workplace, these sources require us to try and do our best to limit them, even though it might be impossible to totally eliminate them. The Torah in Deuteronomy tells us to build a fence around our roofs, which the Talmud expands to other kinds of situations that might present danger to others that one is obligated to prevent. Rav Uzziel (1880-1953), a Chief Rabbi of Israel in the early twentieth century, uses this language to require safety protections for employees in the modern workplace.

Lewis Hine, who took the photograph below, was an advocate for worker reforms, and particularly for limiting child labor at the turn of the 20th century. His photographs of laborers, often taken in secret, would help advocate visually for child labor reforms in the United States. These photos, like the one below, demonstrate visually, and powerfully, the need for labor protection law, complimenting our sources above.

C. Communal Responsibility and Safeguarding Health

We want to return you now to the discussion of potentially injuring others that Rav Moshe brought in his teshuva about playing professional ball. He explains that there is an equally significant obligation to weigh the potential risk to another when evaluating the risk to oneself. With that context in mind, we turn to sources that make explicit how individual health decisions are never truly individual in the Jewish context, perhaps put best by Maimonides, who argued that we should flog those who think a risk to themselves was only their individual concern.

Based on the Jewish notion of areivut, communal responsibility, no one individual (Jew) is seen as acting alone - we are all responsible for one another. The line from Talmud Shevuot 39a, “Kol Yisrael Areivim Ze B’Zeh,” “all of Israel is responsible for one another,” is used to develop a communal orientation to areas like health and welfare. The Alshikh, a 16th century Ottoman commentator, expands upon the concept by using the metaphor of the human body, implying that the Jewish people are like organs with a physical body where each must be as healthy or sinless as possible for the sake of the whole.

The value of areivut is formulated within Jewish sources speaking to a Jewish context, but as an ethical value can be extrapolated to a broader context. Western ethics is known for having focused more on individual rights and personal liberties, Jewish sources about communal responsibility bring a helpful tension to these discussions. Particularly in a context of a worldwide pandemic, the framework of areivut is helpful for thinking through how the larger community, and really the entire globe, are responsible for one another’s safety and well-being. Particularly in the context of business, one corporation’s decision to pay their employees or bring them back to work can have larger effects on the global economy and on communal spread of the disease.

This way of seeing “public health” shifts us away from secular values of autonomy and personal choice, to a way of understanding health and risk as a matter vital to the entire community. This is true both in cases like this pandemic, where infection spreads between people quickly and any risk includes significant risk to others, but also seemingly individual healthcare choices. Although our sources make clear that taking on some risk is allowable for labor, the idea of areivut requires us to think communally about the effects of our business and economic decisions, and about how the risk we take on might affect our community.

Conclusion:
Returning to Jeanette, our young airport sub-contractor: how should we advise her to consider returning to work and negotiating with her employer regarding the risks she might undertake by returning to the workplace? When we spoke to Jeanette in August, she felt it was still not safe enough to go back to the airport, even though she was facing real economic challenges. Part of her hesitancy to return to work was due to the fact that she felt her employer had not yet done everything in their power to make the workplace as safe as possible for her. Until the virus is more under control, and her employer proves that they are taking COVID-19 safety seriously, she will continue to struggle to make ends meet on unemployment.

Below, we detail specific guidelines for employers and employees considering returning to work. These are based on the sources we have discussed above.

Guidelines:

1. Wages in a pandemic (Section 2 of the Source SheeT
   • Employees in all contexts need to be seen as full human beings who employers bear responsibility towards. (See section 1)
   • If an employee is working in any capacity - at home, part time, with an adapted set of tasks - they should be compensated for the work they do, as they would be in normal times. (See Section 1)
   • Although typically, the minimum threshold is one only must pay for work done (even when the lack of work is not the fault of the employee; see Shulkhan Arukh Choshen Mishpat 334:1) this general minimum does not apply during the pandemic.
   • The pandemic is considered a Makat Medina which requires the employer to bear some loss in order to remunerate the employee. (See Rema Choshen Mishpat 321)
   • We understand that in the case of the pandemic neither employers nor employees are responsible for the loss of work and income, thus we recommend the use of a pshara, compromise, to ensure that employees be paid some percentage of their wage while responding to the needs of employers and business owners. (See Sefer Zichron, Chatam Sofer)
   • The ideal, as exemplified in the Chatam Sofer’s own actions, remains to pay the entire wage.
2. Risking Health for Labor
   • In choosing to ask employees to return to work, the first overarching requirement is always to limit risk and to protect health. (See section 2 part A)
   • The employer must provide the safest possible workplace, which in this pandemic includes requiring (and providing) masks, updated cleaning standards, ventilation, enforcing social distancing, etc. (See Rav Uzziel’s teshuva above)
     • Employers must also support employees if they are interacting with members of the public as part of their work who are not following COVID guidelines
   • The intrinsic nature of employment includes risk, and employers can ask employees to return while there remains some limited risk of contracting COVID-19. (See section 2 part B)
   • The limited risk of the virus should follow the concerns expressed by Rav Feinstein and the Chelkat Yaakov that the risk be slight, and “generally accepted.”
     • Defining what risk is “far off” and “generally accepted” in the pandemic is complex. Local standards and guidelines should be utilized as well as expert scientific opinions. (See the Chelkat Yaakov)
     • Employees must be made fully aware of the risk they are taking with regard to returning to work. (See Rav Feinstein’s teshuva)
     • The choice to take on risk must be made freely, employers cannot make an ultimatum requiring their employees to return. (See Rav Feinstein’s teshuva)
   • Employees considering returning to work should go through a similar thought process: balancing the native risk of the profession, their need for compensation, their individual health status, and the various options available to them to work in safe or less safe environments.
   • Jewish sources require us to contextualize health risks within a larger context of communal responsibility. These decisions are not made in a vacuum - we are all responsible for one another. We cannot answer these questions as single individuals or even corporations but must consider the larger effects on the community. (See Section 3, Part C)

In an ideal world we would have a coordinated government response issuing clear, precise, and scientifically verified rules about returning to work, which includes a plan for enforcement. Given that this is not the case, Jewish communal bodies should feel that they are responsible for encouraging employers to take seriously the risk presented by COVID and to limit that risk to their employees. This should be considered a Jewish religious and communal matter; the Jewish community has the power and obligation to assert these principles with regard to members of their communities. This includes Jewish institutions and organizations that employ both members of the Jewish community and others (for example Jewish non-profits, schools, and synagogues). The Jewish community should be empowered to encourage and enforce these workplace guidelines in much the same way that they enforce aspects of ritual observance.

1. Name has been changed for privacy.

2. This ruling is based on Rava’s comment on Bava Metzia 76b. See also Beit Yosef, Choshen Mishpat 334:1.

3.In order to make this source clearer we have added brackets to explicate the translation at points, and added in more explicit subjects when the Rema uses pronouns.

4.For the sake of brevity and clarity we have chosen to not include the text of the teshuva. Unfortunately there was no one part that concisely stated these points. To see the text inside look at Shu"T Chelkat Yaakov, Choshen Mishpat, Siman 31, particularly sections 6 and 8.

5. It appears that Rav Uzziel does not think his teshuva is psak din that would necessarily force an opinion in a Beit Din. However, for the sake of our guidelines that rabbinic opinion urges strong worker protections.