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Beit Midrash Series P'ninat Mishpat

part I

Chapter 48

Workers Who Missed Work Due to Illness

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The gemara (Kiddushin 17a) deals with the matter of an eved ivri (Jewish servant who serves for six years) who was sick for a significant period. Does he have to make up the time he missed or does the time missed count toward the six years? The gemara distinguishes between two cases. If the worker missed a minority of the period (under three years) he does not have to make up the time, and the owner loses. However, if he was sick for a majority of the time, the eved must complete the time he missed. Tosafot (ad loc.) brings an opinion that the ruling is the same for a regular worker who was obligated to work for a certain period of time and missed time due to illness. Thus, if the time missed was a minority of the employment period, he receives payment in full. Tosafot, though, asks from a gemara (Bava Metzia 77a) that says that if a worker was unable to complete his job, he receives pay only for the time he actually worked. Tosafot concludes that a regular worker gets paid for the time he worked only. An eved ivri is different because the master acquires semi-ownership of the body of the eved and, therefore, he shares in the loss. In summary, then, there is a machloket Rishonim if a worker who missed time due to illness gets paid for the time he missed.
P'ninat Mishpat (575)
Various Rabbis
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The Tashbetz explains the first opinion cited in Tosafot in the following manner. Someone who acquires an eved ivri for a matter of years knows that during that time, the eved will miss some time due to illness. If he anyway makes no stipulation as to recovering that loss, he accepts the almost inevitability as his loss. In the same way, one who hires a worker for a long period of time can assume that the worker will miss time for illness, and if he does not stipulate, he has to pay in full. Based on this approach, the question from the gemara in Bava Metzia is not difficult. There it is talking about one who hires a worker for a matter of days. In such a case, he does not need to expect that specifically at that time, the worker will get sick, and his lack of stipulation does not infer acceptance of the obligation to pay for times when he did not work.
Even according to the Tashbetz, there is a gray area, when the employment period is longer than a few days but shorter than years. When would we say that the period is long enough to require the employer to stipulate or lose, and what is considered a short employment where he has to pay only for the time he worked? One can draw the line at a year, which is the cutoff point according to Israeli law. The Rosh (cited by the Rama, CM 333:5) has another compromise position, that an employer can take off for time missed, but if the worker returned to the job without the employer informing him that he would reduce his salary, he relinquished his rights to do so. The Shach (333:25) argues and says that silence on the matter is not deemed as relinquishing of rights.
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