Pursuant to Israeli law, the wages of self-employed or salaried employees who become pregnant and whose obstetricians diagnose them with at-risk pregnancies shall not be adversely affected.
A pregnant employee who receives a medical certificate from a physician is, of course, entitled to present it at the workplace and receive sick pay, as a precondition to continuing to be paid her wage from her employer. However, some employees do not have an unused balance of sick days, or do not want to utilize sick days for their pregnancies. Moreover, for the self-employed, sick days are irrelevant. Then what?
Criteria to Receive an At-Risk Pregnancy Allowance from the National Insurance Institute
Subject to entitlement rules, employees may receive a benefit from the National Insurance Institute (NII), in lieu of their wages, for the period of their at-risk pregnancy. If deemed entitled, salaried employees do not need to utilize their accumulated sick days, while the self-employed find a solution for receiving pay during the period they are unable to work.
- The obstetrician’s diagnosis must be in writing, straightforward, and decisive. It must state unequivocally that the medical condition endangers the mother or the fetus and that she must refrain from working for at least 30 days. (If the obstetrician’s decision is leave for less than 30 days, the days will be deducted from the employee’s sick days.)
- The medical condition does not have to be life-threatening, but there must be a risk of substantive physical morbidity. Discomfort or pain deriving from natural physiological changes pertaining to pregnancy, which will dissipate after childbirth, do not entitle a pregnant employee to an at-risk pregnancy allowance.
- The obstetrician’s diagnosis can be purely medical-related, wherein the pregnancy itself is at high risk, or it can be occupational, wherein the risk derives from a combination of the pregnancy and the type of work, type of workplace, or how the work is performed. If the obstetrician’s decision regarding at-risk pregnancy leave is for occupational reasons, the employee must first check if it is possible to mitigate the medical risk by reassignment to a suitable alternative role in the workplace. The employee is entitled to the allowance only if the employer has no suitable alternative position to offer her.
- The employee must be insured under the NII. In other words, she must be a resident of Israel who paid insurance contributions for six months during the last two years. Foreign employees are not entitled to the allowance.
- Traveling abroad during at-risk pregnancy leave will revoke the employee’s entitlement. Please note that the NII’s databases receive information about departures and arrivals from the country.
- After filing her claim, to which she must attach her medical certificates and pay slips, the NII will decide on her entitlement after at least 30 days of at-risk pregnancy leave. The obstetrician on the NII’s behalf may request clarifications pertaining to her medical condition and has the authority to approve or reject claims.
- In the instance of a disagreement between an HMO obstetrician and the obstetrician appointed by the NII about the degree of risk posed by the pregnancy, the labor court shall resolve the disagreement. In a recent labor court ruling, the court accepted the more lenient opinion and approved the employee’s entitlement to the at-risk pregnancy allowance.
- The allowance to a salaried employee is 90% of her average wage, subject to a maximum. The allowance to a self-employed woman is according to her payments of income tax advances, to be updated retroactively.
Sick Pay and Disability Pension from a Pension Fund
- Some pension funds offer a disability pension to employees during at-risk pregnancies, provided the medical condition caused them to be unable to work for a period exceeding 90 days (or for a shorter period if the fund’s terms allow this).
- An employee who receives a disability pension from a pension fund is not entitled to an at-risk pregnancy allowance from the NII. Since a pension fund’s disability pension may be higher than the NII’s allowance, it may be preferable to opt to receive a disability pension. However, for the most part, the pension is contingent upon a longer at-risk pregnancy leave.
- If the employee is entitled to a disability pension from a pension fund, she and her employer will not have to transfer contributions to the pension fund (the employer’s share and the employee’s share) for pension insurance during the period she receives the disability pension. The pension fund will pay these sums to the employee’s pension savings during the period she receives the disability pension.
- If an employee filed a claim for an at-risk pregnancy allowance from the NII, but later decided she prefers to utilize her accumulated sick days and her employer agrees, then the employer will pay her wage and her entitlement to the NII’s allowance will be revoked.
***
Adv. Amos E. Rosenzweig serves as an of counsel for Barnea Jaffa Lande and leads the NII Practise.