Rabbi Avrohom Sebrow
The Gemara in Kiddushin (17a) discusses the situation of an eved Ivri, an indentured servant, who became ill. His boss contracted with him for six years of labor. However, he was ill for two years. Can his boss demand a refund for those two years where he just stayed in bed all day? The Gemara answers unequivocally in the negative. It is the boss’s bad mazal, and he must absorb the loss. Tosfos comment that there are those who equate the situation in the Gemara to that of a rebbe who was hired to teach children and then fell ill. They would argue that if the rebbe was sick for less than half of his contracted term, then the school that hired him must pay his full salary. Since the rebbe cannot be faulted for becoming ill, the yeshiva must absorb the loss. The Gemara in Bava Metzia (77a) discusses a day laborer who fell ill at midday. Tosfos say that the Gemara implies that he does not get his full daily salary, but neither is he penalized. For the half-day that he worked, he gets paid; the day laborer will not get paid for the half-day that he was legitimately AWOL. Regarding this issue, a rebbe should be treated the same as a day laborer: He should get paid for the time he taught, but if he was sick for a significant period of time, his pay should be docked. However, Tosfos are left to explain why an eved Ivri is treated financially better than a day laborer or rebbe. Tosfos posit that when one buys an eved Ivri, he has actually acquired a lien on the individual. He received value for his funds. The fact that he was unable to benefit from his lien is of no consequence. It is similar to someone who leased a car for three years. What would happen if all the roads were declared off-limits for three years? Could the lessor demand a refund?
Certainly not. He received the car that he leased; he has no claim on the leasing company. Likewise, the purchaser of an eved Ivri received his six-year lien. If the eved Ivri was sick for two years, the purchaser still received value. However, standard employers, such as a yeshiva, do not acquire a lien on their employees. They only receive value when the laborer performs his job. Consequently, if the worker did not fulfill his duties, even through no fault of his own, he should not be paid. The boss did not receive value for the wages he is supposed to pay. Interestingly, the Shach (CM 333:25) quotes the Maharam Mi’Rottenberg who stated that a different explanation of the distinction between the eved Ivri and the day laborer was revealed to him in a dream. According to the Maharam, the eved Ivri and the day laborer have essentially the same halachos in this matter. However, the eved Ivri is prepaid for his six years of work. Therefore, if he falls ill for two years, the boss absorbs the loss. The day laborer is postpaid. Therefore, the worker himself absorbs the loss. The rule is that whoever is holding the funds gets to keep them in the event of the worker’s illness. According to this distinction, if a teacher was pre-paid a year’s salary (good luck with that!) and then fell ill for two months, the school would have to absorb the loss. However, teachers that are given weekly paychecks would themselves absorb the loss in the case of sickness. According to Tosfos, a teacher always suffers a financial loss for missing time due to illness, whereas according to the Maharam, this would only be true if the teacher was not paid in advance. The Shach was not impressed with the ruling of the Maharam, especially since it was based on a dream. He said dreams are of little halachic value. Further, he reasons that the determination of who absorbs the loss should not be contingent on who is holding the money.
It is true that in cases where there is a halachic doubt or question of fact, we often resolve the dispute by letting the money stay where it is (ha’motzi me’chaveiro alav ha’ra’ayah). However, the Gemara never said that there was any halachic doubt involved in this case. Therefore, the resolution of Tosfos is preferred, because it’s based on the explanation that an eved Ivri is categorically different from a teacher or day laborer. In practice, this discussion is usually not relevant, as most institutions and employers have firm rules in place for sick days. Employees are hired with the understanding that their employment is on the employer’s usual terms. Therefore, notwithstanding the above opinions, the rules of the employer should be followed. Even if the employer has no specific rules, questions of this nature would follow the custom of the locale. Is there any real chance of an employee getting paid for two years of sick time? Based on the Maharam, we can say: dream on!
Rabbi Avrohom Sebrow is a rebbe at Yeshiva Ateres Shimon in Far Rockaway. In addition, Rabbi Sebrow leads a daf yomi chaburah at Eitz Chayim of Dogwood Park in West Hempstead, NY. He can be contacted at ASebrow@gmail.com