Bread of work, scooter or transportation?
Jun 28, 2021
By: Adv. Shlomi Hadar – John Geva, Hadar & Co., Attorneys and Mediators
Generally, employers do not express interest in the mode of transportation their employees use to get to work, as long as they arrive on time. In Israel, where the number of cars on the roads increases by 100,000 each year, there seems to be no transportation solution on the horizon. Due to the COVID-19 crisis, confidence in public transportation has declined, and many employees choose to commute using personal electric vehicles, including electric scooters.
The growing prevalence of electric vehicles on the roads has led to an increase in their involvement in accidents with other road users—both vehicles and pedestrians.
What is the legal position when an employer wishes to dictate how employees commute to work? For example, requiring employees to use only a company shuttle or prohibiting the use of electric vehicles to get to work. It should be remembered that freedom of movement has been recognized by the Supreme Court as a fundamental right protected under the Basic Law: Human Dignity and Liberty (see: Bagatz 5016-96 Lior Horev v. Minister of Transport et al., published in Nevo, 13.04.1997). Therefore, instructing an employee on which mode of transportation they are allowed to use to commute to work is not a trivial matter.
From: Attorney Shlomi Hadar - John Geva, Hadar & Co. - Lawyers and Mediators
Employers usually do not express interest in the means of transportation that employees use to get to work, the main thing is that they show up on time. In the State of Israel, where the number of cars on the roads increases by 100,000 every year, there seems to be no transportation solution in sight. Due to the Corona crisis, trust in public transportation has decreased, and many employees are choosing to get to work using personal electric means of transportation, including motorized scooters.
The increasing prevalence of electric vehicles on the roads is leading to an increase in their involvement in accidents with other road users - vehicles and pedestrians.
What is the law when an employer wishes to define for his employees how to get to their workplace? For this matter, arriving at their workplace by transportation only, or prohibiting arriving at the workplace by electric vehicle? It should be remembered that freedom of movement was recognized in the Supreme Court's ruling as a fundamental right protected under the Basic Law: Human Dignity and Liberty (see: High Court of Justice 5016-96 Lior Horev v. Minister of Transportation et al. (published in Nevo, 13.04.1997), and therefore, giving an employee an instruction on which vehicle he is allowed to use to get to work is no small matter.
During the Corona crisis, severe and unprecedented restrictions were imposed on the freedom of movement of the country's citizens, and even a ban on entry for foreigners, and the question of under what conditions the freedom of movement of the country's citizens can be restricted in order to protect public health has repeatedly come up on the public agenda.
Recently, the Regional Labor Court ruled that an employer may prevent a teaching employee from reporting to work who has not been vaccinated against COVID-19 and refuses to present a negative COVID-19 test result at regular intervals (see: SAASH (Tel Aviv-Yafo) 42405-02-21 Sigal Avishai - Kochav Yair Tzur Yigal Local Council (published in Nevo, 21.03.2021)).
However, what is the ruling regarding an employer who wants to prohibit his employees from coming to work by electric vehicle, on the grounds that using an electric vehicle is significantly more dangerous than traveling in a "conventional" vehicle, such as a car or bus? And what is the ruling when an employer asks his employees to avoid using public transportation as much as possible in order to reduce the risk of infection? At this stage, the case law and rulings have not explicitly discussed these questions.
During the Corona crisis, severe and unprecedented restrictions were imposed on the freedom of movement of the country's citizens, and even a ban on entry for foreigners, and the question of under what conditions the freedom of movement of the country's citizens can be restricted in order to protect public health has repeatedly come up on the public agenda.
Recently, the Regional Labor Court ruled that an employer may prevent a teaching employee from reporting to work who has not been vaccinated against COVID-19 and refuses to present a negative COVID-19 test result at regular intervals (see: SAASH (Tel Aviv-Yafo) 42405-02-21
However, what is the ruling regarding an employer who wants to prohibit his employees from coming to work by electric vehicle, on the grounds that using an electric vehicle is significantly more dangerous than traveling in a "conventional" vehicle, such as a car or bus? And what is the ruling when an employer asks his employees to avoid using public transportation as much as possible in order to reduce the risk of infection? At this stage, the case law and rulings have not explicitly discussed these questions.
An employer who allows its employees to get to work with an electric bicycle or electric scooter benefits from reduced parking expenses – the more employees who get to work with an electric vehicle, the smaller the required parking space will be. However, there are additional issues involved in employees getting to work using personal electric vehicles that require a response, such as road safety considerations. It should be noted that the National Insurance Institute and/or labor courts may classify a traffic accident involving an employee who drove his electric vehicle on his way to and/or from his workplace as a work accident (see, for example: B.L. 41452-03-20 Barak Swiss Israel Azoulay v. National Insurance Institute (published in Nevo, 22.04.2021)).
Section 79 of the National Insurance Law [Consolidated Version], 1995 (hereinafter: " the National Insurance Law ") defines an "occupational accident" as follows: "An accident that occurred while working for or as a result of working for or on behalf of an employer, and in the case of a self-employed worker - while engaged in his profession and as a result of engaging in his profession."
Section 80(1) of the National Insurance Law, which deals with the presumption of a work accident, expands the definition of "work accident" and states that "an accident is considered a work accident even if it occurred during the insured's travel or walk to work from his residence or from a place where he sleeps, even if it is not his residence, from work to his residence or from one place of work to another, and as a result of his travel or walk ."
It is important to emphasize that settled law has repeatedly stated that where the employee (the insured) leaves his residence to a place other than the workplace, and from there goes to his work, we must examine the purpose of the trip, whether it was for private matters or for work purposes. To the extent that the deviation was made for a matter unrelated to the workplace, this will be considered a "real deviation," in which case it is not considered an accident at work. When the deviation was intentional and planned in advance, an accident that occurred during the deviation and as a result of the deviation will not be considered an occupational accident. (See, for example: B"L (T"A) 48793-10-18 Yosef Al-Khuri v. The National Insurance Institute (published in Nevo, 09.11.2020)).
The electric scooter is not recognized in traffic laws as a vehicle with a clear and defined identity, to which the obligations of obtaining a driver's license, vehicle registration and insurance apply according to the Motor Vehicle Insurance Ordinance (New Version), 5771-1970 . In Section 1 (Definitions Section) of the Traffic Regulations, 5721-1961 , the following definition appears: "Scooter" - a two-wheeled or three-wheeled device in which an electric motor is installed, complies with Israeli Standard 6230 "Scooter (Electric Scooter) - Safety Requirements and Test Methods" (hereinafter - the Scooter Standard), as in effect from time to time, a copy of which is deposited for public inspection at the offices of the Israeli Standards Institute, and a reference to it can be found on the website of the Ministry of Transport and Road Safety, and in which all of the following have been met: the maximum power of the motor does not exceed 250 watts; the motor is operated by means of a hand throttle; The engine stops when the brakes are applied; its maximum speed does not exceed 25 km/h; and the device's net weight does not exceed 30 kg."
Under Section 39(1)(a) of the Traffic Regulations, it is determined that "the owner of a scooter is exempt from the obligation to register and license under Section 2 of the Ordinance," and that "the rider of a scooter is exempt from the obligation to have a driver's license under Section 10(a) of the Ordinance." Section 122(a) adds that "a person shall not drive a scooter unless he has reached the age of 16."
In late 2020, the Supreme Court considered the question of whether electric bicycles should be considered a "motor vehicle" as defined in the Compensation for Road Accident Victims Law, 5735-1975 (hereinafter: " the Law " or " the Compensation Law "). The Traffic Ordinance is intended to regulate the conditions of use of vehicles propelled by mechanical power. The Compensation Law is intended to create a framework for compensation for injury in a road accident without proof of liability. The Compensation Law establishes the basic responsibility of the user of a motor vehicle to compensate an injured party for bodily harm caused to him in a road accident in which his vehicle was involved. As a rule, compensation can be paid by commercial insurance companies that insure motor vehicles, and in certain situations, compensation is provided by Karnit, the Road Accident Victims Compensation Fund established by law.
Section 1 of the Compensation Law states: "'Motor vehicle' or 'vehicle' - a vehicle that is mechanically propelled on the ground, and whose primary purpose is to be used for land transportation, including a train, a tractor, a mobile machine capable of moving mechanically on a road, and a vehicle towed or supported by a motor vehicle, and excluding a wheelchair, a wheelchair and an escalator."
Section 3(a) of the law states that in a road accident involving multiple vehicles, each driver will be liable for bodily injury to the person driving his vehicle. If the scooter is a "motor vehicle" and it collided with the private vehicle coming in front of it, the aforementioned provision of Section 3(a) applies. However, here the law sets forth limitations on the entitlement of victims to compensation under the law. One of the limitations concerns a situation where the victim is the owner or possessor of the vehicle, who permitted another to drive it, without valid insurance at the time of the accident in which the injury occurred. If this condition is met, the victim will not be entitled to compensation.
In the context of the RAA proceeding 7451-19 , the estate of the late Gabriel Assolin, z"l v. Walid Darwish (published in Nevo, 10.12.2020)), the Supreme Court ruled, among other things, that standard electric bicycles do not constitute a "motor vehicle ", according to the language and purpose of the law. It was determined that standard electric bicycles combine the application of mechanical force and a certain physical force, and the language of the law does not give an unequivocal answer to the question of whether they fall within the scope of a "vehicle propelled by mechanical force". Therefore, their use is not covered by the Compensation Law, even though the risk from them, both to the cyclist and to pedestrians, may be extremely high, to the point of risking life.
The result leaves question marks regarding other similar vehicles, such as electric scooters. We are dealing with "hybrid production," which may be used for both amusement and land transportation. The question of classifying a scooter as a "motor vehicle" is also relevant to the question of the right of a third party injured by the scooter to receive compensation under the Compensation Law. If the scooter meets the definition of "motor vehicle," then Section 2 of the Law will apply to the injured party, entitling him to compensation, but in the absence of valid insurance for the scooter driver, the Road Accident Victims Compensation Fund will bear the obligation to compensate according to Section 12 of the Law. On the other hand, if the vehicle's classification does not meet the definition of "motor vehicle," then a third party injured by it is not entitled to compensation, since the basic entitlement to compensation under Section 2 of the Law is conditional on the injury in the accident being caused by the use of a motor vehicle.
It should be noted that the Supreme Court ruled in the context of the case A.A. 2606-06 Dewey Shafuran v. Zak Turgeman (published in Nevo, 11.05.2010) that the mechanical scooter does not meet the definition of a "motor vehicle" under the law. In that case, the scooter was powered by a gasoline engine.
The court ruled that the nature of the mechanical scooter, and its primary purpose, are aimed at play and amusement; it is not intended to be used for transportation purposes in light of its inherent limitations in the amount of fuel and the short distance it can travel. These cumulative characteristics make it difficult to classify the mechanical scooter as a "motor vehicle" under the law. It was further determined that the mechanical scooter is more similar in essence to "mechanically powered cars that travel as amusement rides at an amusement park," which do not constitute a "motor vehicle" for the purposes of the Compensation Law, since their primary purpose is not to be used for land transportation.
It was further determined that the conclusion that the mechanical scooter is not a "motor vehicle" within the meaning of the Compensation Law is reinforced by the fact that it is not recognized under traffic laws as a vehicle with a clear and defined identity, to which the obligations of obtaining a driver's license, vehicle registration and insurance apply. Therefore, a passenger on a mechanical scooter who is injured by a motor vehicle in a road accident is entitled to compensation from the driver of the offending vehicle within the framework of Section 2(a) of the Compensation Law.
In conclusion:
We believe that under the circumstances, and in light of the Supreme Court's ruling regarding the use of electric bicycles, we can only conclude that an electric scooter also does not constitute a "motor vehicle" according to the provisions of the law.
In this situation and in light of the above, employees are entitled to arrive at their workplace on a scooter, subject to the provisions of the law. The risk they take on themselves is that in the event of an accident, God forbid, in which a vehicle is involved, the accident will be recognized as a traffic accident and a work accident, while in the event that the accident does not involve a vehicle, they are exposed to a claim regarding damages caused to a third party, and in relation to a work accident, this will be determined subject to compliance with the conditions.
And how should employers behave? As stated above, it is not possible to dictate according to existing law which means of transportation an employee must use. However, on the face of it, there is no obstacle to making employees excuse themselves to travel by safer transportation and to present to employees the risks that exist in riding electric bicycles or scooters on the way to or from work, in conversations, lectures, and even by distributing information on the subject (unfortunately, there is a generous amount of articles and videos on the subject throughout the Internet that can provide visual material on the subject).
We believe that, under the circumstances and in light of the Supreme Court’s ruling regarding the use of electric bicycles, we must conclude that an electric scooter likewise does not constitute a “motor vehicle” under the law.
In this situation, and as noted above, employees are entitled to commute to work using a scooter, subject to the provisions of the law. The risk they assume is that, in the unfortunate event of an accident involving a motor vehicle, the incident will be recognized both as a traffic accident and a work accident. In cases where no motor vehicle is involved, employees remain exposed to potential claims for damages caused to third parties, and any work-related injury will be evaluated according to whether the legal conditions are met.
How should employers act? As mentioned above, it is not legally permissible to dictate the mode of transportation an employee must use. However, employers may encourage employees to choose safer transportation and inform them of the risks associated with riding electric bicycles or scooters to and from work. This can be done through discussions, lectures, or information dissemination. Fortunately, there is an abundance of articles and videos available online that can provide visual material on this topic.
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