Work accident involving an illegal worker at a construction site
Jul 11, 2022
By: Itzick Simon, in collaboration with Attorney Maya Arieli, an expert in labor law, real estate law, contractor registration and commercial-civil litigation
There are approximately 65,000 legal Palestinian workers employed on construction sites in Israel, according to the Association of Foreign Labor Corporations in the Construction Industry at the Union of Chambers of Commerce. At the same time, there are quite a few Palestinians who work in Israel illegally. How are work accidents among these workers dealt with, and what is the insurance aspect of the matter? Do they fall both on the site and "between the chairs"? (Absolutely not).
First of all, one must be familiar with the guiding principle. The employment of a Palestinian Authority worker in a building will only be legal if it is by the employer who has requested a specific permit for him (unlike foreign workers from abroad who are usually employed by manpower corporations). The employment permit is given to the specific employer and for a specific job.
If the Palestinian worker works for another employer or in a job that is not permitted by the permit , this is illegal work. That is, it is certainly possible for a person to be in Israel legally but their work is illegal. We will add to this the many workers who enter Israel without permission (Illegal Residents) and who are employed in the construction industry in various jobs (some of which are extremely dangerous).
By: Itzick Simon, in collaboration with Attorney Maya Arieli, an expert in labor law, real estate law, contractor registration and commercial-civil litigation
There are approximately 65,000 legal Palestinian workers employed on construction sites in Israel, according to the Association of Foreign Labor Corporations in the Construction Industry at the Union of Chambers of Commerce. At the same time, there are quite a few Palestinians who work in Israel illegally. How are work accidents among these workers dealt with, and what is the insurance aspect of the matter? Do they fall both on the site and "between the chairs"? (Absolutely not).
First of all, one must be familiar with the guiding principle. The employment of a Palestinian Authority worker in a building will only be legal if it is by the employer who has requested a specific permit for him (unlike foreign workers from abroad who are usually employed by manpower corporations). The employment permit is given to the specific employer and for a specific job.
If the Palestinian worker works for another employer or in a job that is not permitted by the permit , this is illegal work. That is, it is certainly possible for a person to be in Israel legally but their work is illegal. We will add to this the many workers who enter Israel without permission (Illegal Residents) and who are employed in the construction industry in various jobs (some of which are extremely dangerous).
How many illegal workers are there in Israel?
There is no clear database regarding the scope of illegal immigrants in Israel, and of course not every illegal resident is necessarily employed in the construction industry. As a general rule, we note that according to data from the Institute for National Security Studies, every year there are approximately 40,000 illegal residents in Israel who are in Israel for work purposes.
We present this data in order to examine the issue of illegal employment , once from the perspective of legal liability and once more – as a consequence – regarding insurance liability.
In simpler words: we will try to examine who will be responsible for paying compensation to the injured worker (or his family members) if no one employed him with a license, and what the status of the National Insurance Company is.
There is no clear database regarding the scope of illegal immigrants in Israel, and of course not every illegal resident is necessarily employed in the construction industry. As a general rule, we note that according to data from the Institute for National Security Studies, every year there are approximately 40,000 illegal residents in Israel who are in Israel for work purposes.
We present this data in order to examine the issue of illegal employment , once from the perspective of legal liability and once more – as a consequence – regarding insurance liability.
In simpler words: we will try to examine who will be responsible for paying compensation to the injured worker (or his family members) if no one employed him with a license, and what the status of the National Insurance Company is.
Many Palestinian workers are in Israel legally but "supplement income" from employers who are not listed on their work permits. That is, they have a legal employer who pays them Social Security as required, but it was not the employer at whose construction site they were injured.
In these situations, because the employee pays National Insurance contributions, he is insured, but with a significant asterisk . This is because only his employer can issue him a BAL 250 form to receive medical services in Israel. The illegal employer is exposed to a claim for damages for the work accident to the extent that the employee is able to prove the existence of an employee-employer relationship.
The employee is legally present but was injured at the site of a person who was not identified as his employer.
An employee who is in Israel illegally is an "illegal resident" (Shabach). Case law in Israel does not make it easy for the employer in situations of this type, and more than once it has been determined that contractors who have committed the serious offense of employing an illegal employee will not be able to "enjoy" exemption from their obligations.
The employer risks a situation where the National Insurance Institute will recognize the event as a work accident and the employee will file a claim against him, which will result in him being required to indemnify the National Insurance Institute against the amounts paid and to be paid to the injured party. In a parenthetical article, we note that in light of the passage of lost years and/or future heads of damage (such as loss of earning capacity), these are sometimes enormous sums.
The lawsuit will usually deal with the question of the existence or absence of an employer-employee relationship between the contractor and the employee. Needless to say, beyond the tort issue, employing illegal immigrants is a criminal offense that may result in significant fines and even imprisonment.
Example of a ruling – A young man in his mid-20s was injured at a construction site in Israel while staying in Israel illegally and without a work permit. The accident left him 100% disabled. The National Insurance Institute recognized the case as an occupational injury and even encouraged the employee to file a claim against the employer in the Labor Court. The injured person acted as stated and the Labor Court recognized an employee-employer relationship between him and the defendant. The employer was required to indemnify the National Insurance Institute for all amounts paid and to be paid to the young man, and as is known, these are not null and void amounts at all (B.L. 16986-05-11, M.A.C. v. National Insurance Institute et al.).
A worker injured at work on a construction site (without an employer in Israel)
Could the main contractor (or the developer/client) be liable?
Many workers on construction sites are not employed by the client (the developer) or the construction operator (the main contractor in the case of a "key contractor"), but by a subcontractor. When it comes to issues related to work-related accidents on the site, the client or the "construction operator" cannot necessarily hide behind the direct employer. The law largely views the construction operator as the "employer of all those on the site" in terms of liability in the event of a work-related accident. National Insurance Institute regulations state that a main contractor who employs subcontractors is considered the "employer" of all people on the site, unless he has submitted a Form 648 for each subcontractor who enters the site gates.
The law places a great deal of responsibility on the "construction operation," and the developer or main contractor can also find themselves liable for compensation to the worker when he was employed illegally. Especially if they did not take all reasonable measures to ensure that subcontractors only employ legal workers and if they did not control worker entry to the site.
To the extent that there is no main contractor on site, the responsibility lies with the developer, and it should be emphasized that responsibility can also lie with the site foreman.
The illegal worker who was injured was employed on site by a subcontractor.
The question arises, does a contractor work insurance policy provide the insured with coverage in the event of a work accident involving an illegal worker? Well, the answer is usually yes. The policy usually takes a "blind" approach to the legal status of the worker, and to the extent that he is injured at the specific site and the event falls within the scope of the policy, then there will also be insurance coverage.
On the other hand, it is important to emphasize that employing an illegal worker on a construction site is a criminal offense. The insurance policy for contracting work does not provide the insured with a solution for the defense expenses for the criminal proceedings involved in such an offense, and this is not a trivial matter.
On the contrary. Representing contractors and developers in criminal proceedings following an accusation in connection with the employment of contractors may require significant financial resources (as well as hassle, emotional distress, and time).
Is there insurance?
In conclusion,
The employment of illegal workers in the construction industry is a phenomenon that must be eradicated. This article deals with the issue from the perspective of work accidents, but things are of course serious on other levels as well (not to mention the security issue that makes headlines every time a nationalist incident is committed by an illegal resident).
Although the contractor's insurance policy usually provides a protective envelope of accident coverage regardless of the worker's legal status in Israel, on the other hand, a criminal charge in connection with the employment of contractors may involve criminal defense expenses that are not covered by the contractor's policy.
The employment of illegal workers in the construction industry is a phenomenon that must be eradicated. This article deals with the issue from the perspective of work accidents, but things are of course serious on other levels as well (not to mention the security issue that makes headlines every time a nationalist incident is committed by an illegal resident).
Although the contractor's insurance policy usually provides a protective envelope of accident coverage regardless of the worker's legal status in Israel, on the other hand, a criminal charge in connection with the employment of contractors may involve criminal defense expenses that are not covered by the contractor's policy.
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