By Hanny Ben-Israel, Attorney
On June 23, a verdict was read (by Judge Arbel, with approval from Judge Fogleman and Judge Barak-Erez) in a long-standing petition filed by Kav LaOved, mainly regarding the demand to provide social benefits to migrant workers who are legally staying in Israel for prolonged periods. The petition asked the court to order the Ministers of Social Affairs and Health to make special arrangements under the National Health Insurance Law and Social Security Law for migrant workers legally staying in Israel for over 10 years (such laws allow the ministers to establish special scope arrangements even for workers who are not formally residents).
The core of the appeal pertains primarily to the interests of migrant caregivers, who according to the legal situation prevailing today, can legally spend long periods in Israel, if they continue to nurse the same patient.
The petition was accepted in part. The part dealing with exercising the Minister’s power under the Social Security Act was rejected. However, it was determined that the Minister of Health’s decision to not use his authority to establish a special arrangement for the group in question is neither reasonable nor proportionate. “The petitioners,” read the verdict of Judge Barak-Erez, “placed a basis for a claim saying that the coverage scope of existing medical insurance for senior migrant workers does not meet the constitutional standards of the right to dignity, mainly due to lack of response of medical insurance in circumstances where the senior migrant workers suffer from sickness that causes a loss of working capacity for an extended period of time.” It was further determined that the existing arrangement disproportionately hurts the right to health:
“It can be alleged that the absence of medical response to illness or serious injury (causing a loss of working capacity) of a person who has a continuing bond to the country (as opposed to tourists or people whose presence in Israel is fixed and relatively short) is a serious damage to the core of the right to health. In fact, the more serious the medical condition, so is the lack of response to it more severely undermining the right to health. In the existing state of affairs, the result is that the medical insurance for senior migrant workers does not cover the difficult situations they may encounter (but rather only covers minor illness conditions). The existing arrangement is therefore problematic because it does not actually address the core violations to the right to health. The effect of this violation is worsened when one considers that in the current state of affairs it will be even more difficult for employees who have lost their working capacity to obtain a new medical insurance that will address their predicament (as it is well known that any newly purchased insurance does not usually cover existing conditions).”
Operationally, the court stated that “the medical arrangements for migrant workers with an extended commitment to the country should be made similar to those arrangements pertaining to Israeli citizens.” At the same time it was noted that this result can be achieved in different ways. Although the best way is determining special arrangements by the Minister under the National Health Insurance Law, we cannot rule out the possibility of rectifying the flaws in the current state of affairs by an amendment of the Foreign Workers decree (Prohibition of Unlawful Employment and Assurance of Fair Conditions) (medical services package for the worker), 2001 (a decree stipulating the duty of insuring migrant workers with private medical insurance and providing various provisions regarding the scope of insurance coverage which shall be provided). A time period of one year was given to the respondents of the petition for examining and formulating an appropriate arrangement.
One short paragraph, from the short opinion article by Judge Barak-Erez, managed to encapsulate nicely the basic principle that, after all, stands at the heart of this process; a principle we have spilled much ink trying to explain, describe, and demonstrate in court appeals:
“We’ve come a long way, but in fact a simple principle guided us: the Israeli society is assisted by caregivers – who are not citizens of Israel – for the treatment of its patients and its elderly. These are people who stay in the country for many years, legally and under the state’s request and blessing. Now, when these caregivers need to be taken care of, they must be treated generously and be allowed to heal and regain their strength, if only to some extent. They are worthy, according to the spirit of our heritage (see Proverbs XVII, 13), so we reward them with good for good and not, heaven forbid, something else.”
It was ruled that Kav LaOved will receive 25,000 NIS in court expenses.
The court ruling (in Hebrew): http://elyon1.court.gov.il/files/06/050/011/b41/06011050.b41.htm
Translated by Shira Haddad