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- Chemdat Yamim
- P'ninat Mishpat
797
Mahari Bruna (134) and the Tzitz Eliezer (II, 26) hold that when a worker is sick but is able to work with a lower level of efficiency (perhaps even with reduced hours) he receives full pay. Their proof is from the gemara regarding an eved ivri, which says that although an eved who is sick for more than three years has to make up the time, if he was able to work at light jobs, he does not have to make up the time. The Tzitz Eliezer assumes that the same is true of a regular worker.
However, logically there is room to distinguish between the gemara’s case and that of a regular worker. An eved does not come to an agreement in advance with his owner as to which tasks he will be responsible for. Rather, he is obligated to do everything that he can that the owner wants. Therefore, whatever work he is capable of doing is considered a fulfillment of his servitude. In contrast, a standard worker is hired for a specific job. If he is unable to do this job according to the minimum specifications, then he is not fulfilling his obligations and may not deserve full salary. This is the implication of the Ritva (Kiddushin 17a).
Let us now summarize that which we have learned. An eved ivri does not have to make up for time he misses due to illness unless he misses more than half of his stint as an eved. There is a machloket Rishonim regarding if a regular worker has the same parameters in this regard as an eved or whether he normally is not paid for the work he misses due to illness. Exceptions to the rule would be in places where there is an accepted practice to pay for sick days and in a case where it is evident from the situation that the employer relinquishes his rights to compensation for the work missed. It also appears that if illness makes a worker perform at a lower than expected level of efficiency, he is also paid in full.
P'ninat Mishpat (781)
Various Rabbis
45 - Workers Who Missed Work Due to Illness
46 - Workers Who Missed Work Due to Illness
47 - Workers Who Missed Work Due to Illness
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