By Rabbi Yair Hoffman for 5tjt.com
On account of the COVID-19 pandemic – there are Torah institutions that have closed down shop. There are other institutions that have closed down sections or departments, and there are institutions that have cut salaries.
How does all of this fit into Halacha?
There is something in Halacha called a Makas Medina – a strike on the entire country, or a national emergency. In a Makas Medina, it is not just the employer’s company that cannot work – it is in the entire city or locale that the business is out of commission.
Most Poskim have considered the COVID pandemic a Makas Medina. But what is the halacha of a Makas Medina?
THREE DIFFERENT OPINIONS
Like many areas of halacha, the issue is a debate in halacha. In this case, it seems to be a three-way debate
The Ramah (321:1) rules that when a Makas Medina occurs – the employer is responsible to pay the employee for the entire duration of the employment – even for the time that he or she did not work. This is also the opinion of the TaZ 321:1, the Shach 321:1, TaZ 334:1 and the Aruch HaShulchan 334:4.
Some Poskim, on the other hand, have ruled (Nesivos HaMishpat CM 334: Biurim #1, Biur HaGra 321:7) that under such circumstances, where neither the employer nor the employee knew about this possibility before the employment contract began – the employer does not have to pay for the amount of time that no work was performed.
The third opinion is that of the Smah 321:4. His opinion is that the employer pays half of the salary for the time that the employee did not work.
Generally speaking, the consensus view of Poskim that this author has spoken with is that the halacha is like the Ramah. What further complicates the issue is the idea of “Kim Li k’hani Poskim.” This idea is a legal tool that allows the litigant holding the money to state, “I know that the halacha is in accordance with view X (See Shach CM 183:10; Maharsham Vol. IV #27).
So technically speaking, a school can theoretically argue that they know that the halacha is like the Nesivos HaMishpat and the Gra and exempt themselves from payment. It may not always work, however. Some Batei Dinim have already invoked the idea that the minhag has been established in accordiance with the Ramah’s view – and that one cannot lay claim to Kim li in this situation.
Other Batei Dinim have ruled in accordance with the Smah’s view – that the employer must pay half of the regular salary.
WHAT ABOUT CHODESH LASHANA?
The question arises as to how all of these three opinions play with the concept of Chodesh LaShana?
As a quick introduction, the Sefer HaChinuch in Mitzvah #482 rules that the concept of providing for an employee after he was in your employ for a significant length of time, known as hanakah, is an obligation that exists even in modern times. The Sefer HaChinuch is understood by most meforshim to be referring to the Gemorah’s understanding of a pasuk in Mishlei (2:2) in Bava Metziah 51b of acting over and above the minimum halacha (lifnim mishuras hadin).
The Posek HaDor Rav Moshe Feinstein zt”l had established a norm, or protocol for the Torah institutions of this country, if and when the institution does – that the hanakah – be one month’s salary for every year of employment. Rav Moshe Feinstein’s rulings on three such cases are cited on page 15 of a Sefer written on this topic by Rabbi Naftali Tzvi Frankel on the topic entitled, “Chodesh LaShana.” The first case was dated 5711 and was also signed by Rabbi Yaakov Kamenetsky zt”l and Rav mendel Zaks zt”l. Another case was dated 5724, and two more cases were mentioned as well.
Rav Elyas Svei zt”l is quoted as having said, “The obligation to pay Chodesh laShana is equivalent to the obligation of paying the electricity bill.”
Subsequent to Rav Feinstein’s establishment of the protocols, the Torah uMesorah organization adopted them as the norm for the resolution of such disputes in all such cases. This author reconfirmed that that this has been their position and received a letter to that effect dated August of 2020. In response to someone’s suggestion that the Chodesh laShana protocol was only stated in regard to men and NOT WOMEN – Rabbi Nayowitz, the head of Torah uMesorah responded in an email to this author that there is no distinction between the two.
Rabbi Frankel’s sefer also cites Rav Dovid Feinstein shlita in a letter dated on the 16th of Adar (I) 5763. Rav Feinstein writes that his father’s position was “vadai tzarich” that a firm must certainly provide its employees with a ha’anakah of one month’s salary for every year of employment. In a footnote he added that this was for every employee – even those that worked in the office. In a further clarification, dated 3 Kislev 5772, Rav Dovid Feinstein stated that it was not limited to Mechanchim but all types of Kli Kodesh.
Rav Yisroel Belsky zt”l also wrote that Rav Moshe’s opinion was that it applied to all Kli Kodesh – not just mechanchim – this was in a letter dated 17 Shvat 5772.
Rabbi Frankel’s sefer also prints a letter from Rabbi Gedaliah Schwartz the Av Beis Din of the CRC in Chicago as saying that Chodesh LaShana is the established norm in the United States in a letter dated November 17th, 2011. Rabbi Frankel has printed letters from many dozens of established Poskim and Batei Dinim across America, that Chodesh laShana has become an established and accepted norm. He further prints letters from poskim in Eretz Yisroel and throughout Europe.
RAV ELYASHIV ZT”L
Rav Elyashiv’s position as explained by his secretary, Rav Yoseph Efrati, (p. 28 in Rav Frankel’s sefer) was unequivocal that the Chodesh laShana of Rav Moshe Feinstein zt”l must be followed. Rav Shmuel Kamenetsky shlita signed onto the same letter with the words, “It is clear that we are obligated to follow the custom of the Posaik haDor Rav Moshe Feinstein zt”l.
THE CUSTOM THROUGHOUT THE STATE OF ISRAEL
This has also become According to the Israeli Severance Pay Law of 1963, In Section Five sub-paragraph C of Israel’s Legal Code entitled Termination:
Severance pay: other than in certain cases set out under applicable law, an employee who continuously works for the same employer or at the same place of work for at least 12 months and is dismissed (or resigns in circumstances which qualify as constructive dismissal) is entitled to severance pay. In general, the amount of severance pay is calculated by multiplying the employee’s last month’s salary prior to his or her dismissal, by the number of years worked by such employee (or any part thereof) – which is the definition of Chodesh LaShana. See (https://www.mondaq.com/employee-rights-labour relations/589834/israeli-labour-law-the essentials#:~:text=Severance%20pay%3A%20other%20than%20in,entitled%20to%20severance%20pay14.)
According to Israeli Law, an employer may make monthly contributions toward an account which will be deducted from the pay of this amount upon the termination of the employee’s time of service.
THOSE WHO DISAGREE
In a conversation this author had with Rav Hershel Schachter, shlita, it emerged that Rav Schachter’s position was that the purpose of it was on account of the fact that the Mechanech had taken a position significantly below a standard work wage for the educational investment put in by the Rebbe or Morah. “If the Rebbe was making a half million a year,” Rav Schachter stated, “he would certainly be ineligible for Chodesh laShana.” When asked about a salary of $40,000 per year, Rav Shachter stated that such a person would be eligible. Over $100,000 per year, he stated that he would not be eligible. The gray area, of course was between $40,000 and $100,000 per year according to his view. He also stated that if the Yeshiva or school had implemented a pension program where the school contributes significantly – then there would not be a need for a Chodesh laShana either.
In recent times, on account of COVID-19, there are a number of institutions that have tried to negotiate down or entirely eliminate the Chodesh laShana protocol established by Rav Feinstein zt”l. Others have tried to exclude women from these protocols. Other institutions have offered employees a cut in the traditional Chodesh laShana in order to cut costs. Leading Poskim and Rabbinic leaders have expressed their disappointment to this author about this trend.
COVID AND CHODESH LASHANA
In conversation with a few Poskim, it would seem that the concept of Makas Medina would not be pertinent to the previous obligation that a school has for Chodesh LaShana, but may allow a school to exempt itself as to the last years obligation. On the other hand some expressed the view that since the teacher or Rebbe is being paid for schar batala – for not having done something else – this could possibly limit the exemption of makas medinah.
The teachers and Rebbeim of Klal Yisroel are truly extraordinary heroes. They have devoted their lives to ensure that Klal Yisroel’s level of Ruchniyus remains high. They have taken enormous cuts in potential salaries so that the next generation will be devoted to the ideals of Torah and Yiras Shamayim. The friends of the Rebbeim and Moros have gone on toward other lucrative careers. They survive on paltry salaries. Many of them have taken on a second or third job so that they can continue to do their avodas haKodesh and still support their families. It is hoped that after COVID-19 is over (and may it be over soon), the institutions who have taken away Rav Moshe Feinstein zt”l’s protocols during this time will restore them once again.
As far as the details of makas medinah and its application here, the matter is best resolved in a mediation involving a Beis Din.
There is one yeshiva that approached the entire matter in a method that made both the Yeshiva and the Rebbeim very happy. This is rare in the annals of employer/employee relations. It is hoped, however, that this model be spread.