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[Date of announcement: March 19, 2020]
[Last update date: April 7, 2020]
[Written by Masatoshi Yokogi, Attorney-at-Law]
As of April 6, 2020, the Ministry of Health, Labour and Welfare had already published a Q&A on the new type of coronavirus. However, the Ministry of Health, Labour and Welfare’s Q&A summarized the following, focusing on labor-related issues and labor-related topics that have not been fully explained.
If you have any questions or concerns, please contact info@ym-partners.com.
Please note that the conclusion of any Q&A may change depending on the actual circumstances of the individual case.
Q1 Please tell us what you need to be aware of when introducing the telecommuting system.
A1 It is important to clearly define the content of the telecommuting system so that there is no discrepancy in awareness between employees and the company.
For example, the following items are likely to cause a discrepancy in recognition.
① Whether it is possible for employees to work from home if they wish, or whether it is possible for only those who have received permission or orders from the company to work from home.
② Is it possible to do business at cafes, not at home?
③ How to Identify and Manage Working Hours During Telecommuting
④ Is it permissible for employees to work overtime or on holidays at their own discretion?
⑤ Whether the company or its employees bear the cost of purchasing telecommunications equipment and other items required for telecommuting
Q2 Although our work regulations stipulate the relocation of employees, there are no provisions regarding telecommuting.
Will it be possible to order employees to work from home under such circumstances?
A2 It is natural that telecommuting based on an agreement between the company and its employees can be carried out without any provisions on the basis of the rules of employment. However, in this case, the question is whether it is possible to unilaterally order telecommuting from the company without obtaining the consent of the employee.
In this regard, Q1-11 of the MHLW’s “Q&A on Labor Control, etc. for Telework Introduction” stipulates that the employment regulations require grounded regulations.
In theory, it is pointed out that “the right to order a transfer may be ordered if it is based on a labor contract, but because the right to order a transfer is generally defined as meaning placement in a facility managed by an employer, there is a need to explicitly specify that there may be cases where work at home is ordered when establishing a basis for a labor contract” (Takeuchi (Okuno) Life, “Home Work and Work-Life Balance,” Jurist 1383, p. 86 (2009)).
In light of these facts, it is certain to create regulations stipulating the content of the telecommuting system, as described in A1 above, in which the company can order telecommuting.
Nevertheless, I believe that, at least in a situation where the new coronaviruses are prevalent, it is possible to exercise the human rights or command rights inherent in labor contracts, even if there is no clear basis for the rules of employment to the extent that telecommuting is ordered as a temporary measure in order to reduce the risk of communicating to employees (i.e., to ensure the safety of employees).
Q3 How can we track and manage working hours while working from home?
A3 For example, telecommuters can submit e-mails describing the opening time and closing time, or they can enter the opening time and closing time directly into a cloud-based attendance system.
For information on working hours, see also the Guidelines on Measures to Be Taken by Employers to Properly Understand Working Hours.
Q4 Due to the nature of the work, some employees find it difficult to work at home, so they are asked to work in the office and others to work from home.
If an employee who is in charge of operation that is difficult to process at home wants to work from home, must the company respond?
A4 Unless the company has introduced a system that allows employees to work from home if they wish, without the permission or approval of the company, the company can decline to apply for telecommuting from an employee who is in charge of work that cannot be handled by the company because the company is not obligated to respond to the employee’s wishes. Otherwise, the company can decline to apply for telecommuting from an employee who is in charge of work that is difficult to handle.
However, the Company is obliged to give consideration to safety (Article 5 of the Labor Contract Act). Therefore, depending on the reasons and factors that employees are resisting work in the office, such as the specific risk of being infected with new coronaviruses if they continue working in the office, the Company may be required to take appropriate measures to ensure the safety of employees, such as eliminating the risk.
Q5 When I ordered me to work from home based on the work regulations, an employee asked me to work in the office because there were no desks or chairs at their homes suitable for work.
How should we respond as a company?
A5 Not all offices are completely closed. Some employees may accept requests if they are working in their offices. However, due to the fact that a new type of Corona Virus-affected person occurred in the offices, all employees must be ordered to work at home. If the offices are completely closed, they must be instructed to work at home after establishing their home environment.
The Guidelines for Occupational Health Management in Information Equipment Work will be referred to when verifying whether the home environment is suitable for work.
Q6 Do you need to pay commuting benefits to telecommuting employees?
A6 The conclusion can also change depending on the way the wage regulations are established.
For example, if the Wage Regulations stipulate that the commuting allowance is to pay the amount equivalent to the actual cost of the commuting expenses incurred by actually attending the office (on the contrary, the commuting allowance will not be paid if the employee does not attend the office), it is not necessary to pay the amount equivalent to the transportation expenses that have not been incurred as the commuting allowance.
On the other hand, if the system is designed to provide a commutation allowance regardless of whether the employee actually attends the office or not, the commutation allowance must also be paid to the employee working from home.
Q7 If a teleworker uses a home Internet line, must the company bear all or part of the communication costs?
A7 The company must not be burdened, but if it is burdened by employees, it is necessary to stipulate this in the employment regulations (Article 89-5 of the Labor Groups Law).
In any event, as described in Q1 above, it is important to ensure that there is no discrepancy in awareness between employees and the Company.
Q8 I would like to create rules for telecommuting, but do you have any samples?
Q8 MHLW’s Telework Model Work Regulation serves as a reference.
Q9 Is there a system to subsidize the costs required for the introduction of the telecommuting system (such as attorneys’ fees and the cost of purchasing telecommunications equipment)?
A9 There are the following grants.
① Subsidy for improvement of overtime work, etc. (Telework Course)
② Telework Introduction Promotion and Improvement Subsidy
In ①, the costs incurred prior to the application for the subsidy are also eligible for the subsidy, making the system more user-friendly.
Q10 Are there other materials that should be referred to in relation to telecommuting?
A10 The following documents are used as a reference.
① Guidelines for Appropriate Introduction and Implementation of Outside Work Using Information and Communications Technology
② Q&A on labor management for introduction of telework
Q11 The Q&A of the Ministry of Health, Labour and Welfare states that “Workers and employers may, by agreement, change the starting and ending times.” However, is it not permissible for companies to unilaterally order changes without obtaining the consent of employees individually?
A11 If Work Regulations provide grounds for ordering an employee to advance or move forward the starting and finishing times, the employee may order the employee to change the starting and finishing times based on these regulations without obtaining consent from the employee on a case-by-case basis.
Q12 Regarding the handling of cases in which employees are absent from work due to work restrictions imposed by prefectural governor, the Q&A of the Ministry of Health, Labour and Welfare generally stipulates that leave allowances need not be paid, but is it possible to treat such cases as wages paid after having employees without symptoms work at home?
A12 Under Infectious Diseases Act, prefectural governors are prohibited from engaging in work that contacts a large number of people, and this restriction does not extend to telecommuting.
Therefore, if the prefectural governor does not recommend hospitalization, and if an employee ordered to wait at home rather than stay in the hospital can work from home without any problem, and the employee wants to work from home, it may be treated as paying a wage after working from home.
Q13-1 Among the employees in charge of work that is difficult to deal with telecommuting, there is an employee who have symptoms suspected of being caused by the new coronavirus and who have been found to have been in close contact with people who have suffered from the new coronavirus.
Is it possible to order these employees to refrain from going to the company?
A13-2 In such case, there is necessity and rationality in business operations, and we believe that such an order could be issued as a kind of business order.
Q13-2 Employee, who is suspected to be infected with the new Coronavirus, keeps continuing to office.
Is it possible to order the employee to take a medical examination by a medical institution in order to determine whether or not they can be allowed to go to the company?
A13-2 if it is reasonably suspected of being caused by a new coronavirus, it is considered feasible.
Although the case is not an infectious disease, there are a number of judicial precedents which have been judged to be able to receive a medical examination if there are reasonable grounds, even if the rules of employment do not provide grounds for an examination (Osaka Construction Case, Osaka District Judgment, April 16, 2003, Tokyo Cera Case, Tokyo High Court Judgment, November 13, 1986, Airport Grand Service Case, Tokyo District Judgment, March 22, 1991).
Nevertheless, even if you visit a medical institution, you may not be able to check for infection with the new coronavirus in some cases. Therefore, it is necessary to keep this point in mind.
Q14 Employees working in jobs that are difficult to process from home were found to have intense contact with those suffering from a suspected new coronavirus or those suffering from the new corronavirus, and therefore were ordered not to come to the company.
In this case, is it necessary to pay salary and leave allowance from the company?
A14 Unless otherwise specified in the rules of employment, the financial treatment of employees who are ordered to take a leave of absence from work by companies can be classified into the following three patterns: ① the case falls under the category of “When employees are unable to perform their obligations due to reasons attributable to the creditor” prescribed in Article 536, para.2 of the Civil Code; ② the case falls under the category of “leave due to reasons attributable to the employer” prescribed in Article 26 of the Labor Standards Act, but the case falls under the category of “leave due to reasons attributable to the employer” and the case falls under the category of “leave of absence from work” prescribed in Article 26 of the Labor Standards Act; and ③ the case where employees are not required to pay wages or leave allowances.
Among these, the “reasons attributable to the creditor” in ① and the “reasons attributable to the employer” in ② are similar in terms, but the former refers to the reasons that should be deemed to be equivalent to this by the intention, negligence, or the doctrine of good faith of the company, while the latter is a broader concept and is construed to include problems in management that occur in the area of the employer.
It is difficult to generalize and provide clear criteria for judging whether an individual case falls into any of these 3 patterns, such as the content of suspected infections, the content of the doctors’ opinions, the workplace environment (the degree of risk to others in the workplace, and whether a third party that may become serious in the event of an infectious disease is at the workplace), and whether it is impeding the execution of operations. However, for example, there is a strong suspicion from doctors that the infectious disease should be kept alone.If there is a realistic risk in the workplace of an elderly colleague or customer who is said to be at risk of death, it may be classified as ③. On the other hand, in cases where employees have unilaterally ordered their suspension of business because of fever occurring only slightly, they may be classified as ② or, in some cases, as ①.
There are no clear criteria for this, and it is not easy to judge. Therefore, we recommend that you consult an expert individually when adopting measures ② or ③ instead of ①.
Even if the processes described in ② and ③ above are legally possible, it is possible, of course, to pay the full amount of wages, and in some cases it is appropriate for management to take such measures.
Q14-2 It has been reported that a contingency statement will be issued.
If an employee is absent from work after the declaration of an emergency, is it necessary to pay salary and leave allowance from the company?
A14-2 Pursuant to Declaration of Emergency Situation, the governor of the prefecture may request that those who manage certain facilities, such as movie theaters and theaters, or who hold events using such facilities restrict or suspend the use of such facilities or the holding of events. If the business is suspended due to such a request, the question is whether the employer needs to pay salaries and leave allowances to the worker. First of all, there is no dispute over the fact that in such a case, it does not fall under the category of “when the debtor is unable to perform the obligation due to reasons attributable to the creditor” prescribed in Article 536, para.2 of the Civil Code, and there is no obligation to pay the full salary. Next, regarding the necessity of the leave allowance, according to the press, the Ministry of Health, Labour and Welfare interprets this as not being illegal even if it did not pay the leave allowance.
Subject to this interpretation, in such cases, it is not necessary to pay either salary or leave allowance.
However, this applies only to workers who have no choice but to take a leave of absence due to the direct impact of a request to restrict the use of facilities based on the Declaration of Emergency Situation. Unlike such workers, it is highly likely that workers working in general offices, who are not directly requested to suspend their work, will be required to pay leave allowances as long as they themselves are excluded from the scope of requests to refrain from attending work, even if the administrative authorities are requested to refrain from going out unnecessary and urgently.
In the first place, many of the workers who work at general offices are likely to be able to work from home by adopting innovative approaches by the employer. Despite the fact that telecommuting can be realized, employers will be obliged to pay salaries and leave allowances if they are forced to take off from work easily. Previously, in order to ensure the health of workers and prevent the spread of the new type of coronavirus throughout the world, employers in areas declared as emergency situations should be able to shift to telecommuting by paying the expenses on the part of their employers or taking ingenuity (see Q9 for a system to support the cost required for introducing telecommuting). If telecommuting can be achieved, the employer is able to receive services even under the declaration of an emergency, and the worker is able to receive salary payments, which is beneficial to both labor and management.
Q15 I have heard that there will be an accident and sickness allowance in the event of a suspension of operations related to new type of coronavirus. When will the allowance be paid?
A15 In the event of an infectious disease caused by a new type of coronavirus other than an work-related accident, 2-thirds of the standard daily remuneration amount for the most recent 12 months will be paid as an accident and disease allowance from the day 3 days have passed since the day when employees become unable to work for medical treatment.
According to the Q&A on the payment of sickness and injury allowances for new coronavirus infections, even in the absence of subjective symptoms, they can be eligible for sickness and injury allowances.
Q16 If an employee becomes infected with a new coronavirus in the course of work, will the company be liable for damages?
A16 companies are obliged to give consideration to safety to employees (Article 5 of the Labour Contract Act, which requires that the safety of employees be taken into account). The company is liable to compensate employees for damages (medical expenses, leave damages, compensation for non-pecuniary damage, etc.) incurred by them if employees are infected with new Coronaviruses due to a violation of this obligation by the company.
For example, if an employee who is rationally suspected of being infectious to the new Coronavirus disease was left open to the company, and the prevention of infections among colleagues was inadequate, it is probable that safety considerations will be violated in the event that the new Coronavirus is spread to a colleague.
Q17-1 Employees seem to have suffered a new type of corronavirus from a colleague seated next to the offices, but are they recognized as a work-related accident (are they eligible for occupational accident benefits)?
A17-1 A considerable causality exists between outbreak of the new coronavirus and the company’s operations, which is recognized as a work-related accident.
When a new influenza outbreak occurred in 2009, the Ministry of Health, Labour and Welfare treated the disease caused by an infectious agent such as a antibacterial agent or a virus as being covered by insurance benefits if the infectious opportunity is clearly identified and the disease is deemed to have occurred due to work or commuting.
Therefore (although it may not really be easy to identify the channels of infections), if we can identify the infections from colleagues in the neighboring seats in the office, a considerable causality may be confirmed and it may be recognized as a work-related accident.
Q17-2 employees seem to have been influenced by the new type of coronavirus during business trips, but are they recognized as a work-related accident (are they covered by occupational accident benefits)?
A17-2 generally speaking, while traveling on a business trip, unlike work in ordinary workplaces, the scope of exposure to danger is wide, making it easier for accidents during business trips to be recognized as occupational accidents, and unless there are special circumstances, accidents while staying at a business trip or death from food poisoning can be regarded as occupational accidents. (Ministry of Health, Labor and Welfare Labor Standards Bureau Workers’ Accident Compensation Division, Workers’ Compensation Insurance Act [7th revised edition], p. 170).
Consequently, it is usually considered to be a business accident if it is identified that a new type of coronavirus has been contagious during business trips.
Q18 The impact of the new type of coronavirus has worsened our business performance, but can we forego full-time employees and reduce our workforce?
A18 Dismissal due to deterioration in performance (so-called “comprehension of employment”) is not necessarily permitted, and is void if it lacks objective and reasonable grounds and is not deemed appropriate under socially accepted standards (Article 16 of the Labor Contract Act).
In determining the effectiveness of the system, four factors are taken into consideration: ① whether or not there is a need for personnel reduction and the extent; ② whether efforts have been made to avoid dismissal; ③ whether the selection of a person subject to dismissal is reasonable; and ④ whether the dismissal procedures are reasonable.
Therefore, it is desirable to carefully examine whether these factors are satisfied before layoffs are implemented.