Does the Japanese Government have specific recommendations for companies in respect of the coronavirus?
The Ministry of Health, Labour and Welfare has made general recommendations but the specifics will vary according to the situation. The important points are as follows.
1. In relation to the continuing payment of wages each case needs to be considered individually. In thinking about whether it is necessary to pay leave allowances stipulated in Article 26 of the Labor Standards Act, the points below should be considered. (Please note that the following information is based on the current situation and may change according to how the coronavirus crisis develops.)
(a) When an employee is suspended due to a new coronavirus infection.
If an employee is infected with the coronavirus and is absent from work because of restrictions imposed by prefectural governors, it is generally considered that the worker does not fall under the category of "Absence from work due to reasons attributable to the employer" and therefore no allowance is required for absence from work.
(b) When an employee is suspended from work because of symptoms such as a fever.
If an employee is absent voluntarily because he/ she has symptoms such as a fever and it is not known whether he/ she has the coronavirus, the employee should be treated in the same way as a regular sick leave absence and the existing sick leave system should be used.
But in cases where an employee decides to take a leave of absence on his/ her own initiative, such as when he/ she has a certain symptom (for example, a fever of 37.5 degrees or higher), this generally falls under the category of "Absence from work due to reasons attributable to the employer" and a leave allowance must be paid.
(c) Based on the results of medical examinations, if an employer voluntarily suspends an employee who is able to continue his/ her duties, this generally falls under the category of "Absence from work due to reasons attributable to the employer" and the employee must be paid an allowance for their absence from work.
*Even if it is determined in (a) to (c) that it is not necessary to pay an allowance for absence from work, if it is possible for the employee to continue to work, for example from home, and if it is recognized that the employer has not made the best possible efforts to avoid absence from work, the employer may fall under "Absence from work due to reasons attributable to the employer" category and may be required to pay an allowance for absence from work.
2. In principle, annual paid leave must be granted at the time of the employee's request, so the employer cannot unilaterally require the employee to take the leave.
What are the obligations of the employer vis a vis the employees? Is there case law or some legal opinion?
To date there is no case law and no legal opinion. My interpretation is as follows. Let's consider several employment problems relating to ensuring employee safety:
- How do we treat business travellers (including employees in the field) in China?
- Do we suspend employees during the incubation period when they return from China?
- How do we deal with other visitors (for example customers) coming from China to Japan?
As far as a safety obligation is concerned, a company's legal responsibility in the case of infection between employees or infection by employees to a third party can be problematic. So to be very safety-conscious it is conceivable that a company will try to prevent employees from leaving their homes and ask that they work from home.
A company should also consider whether it needs to postpone or cancel public events.
What are the responsibilities and duties of management in relation to the coronavirus? Is there a liability if a company endangers its employees?
As noted above, it is difficult to discuss clear obligations at this time. Since safety obligations are already so comprehensive in Japan, all companies should prepare themselves as extensively as possible and ensure that safety matters are always at the forefront of their thinking and decision-making. The company should be clear and confident that it has done all it can in this regard.
What are Japanese companies doing in this respect?
To cover the points made above, special teams will be formed with representatives from each department identifying problems and considering solutions. A company's legal department will consult with external lawyers to ensure they have the latest opinions.
Other considerations
I think we also need to think about contractual and antitrust issues. For example, commercial contracts may be impacted by delivery delays from suppliers. It is inevitable that Chinese suppliers will be severely affected by the coronavirus as companies are prohibiting employees from coming to work. Furthermore, companies need to consider their place in the supply chain and the various obligations raised throughout that supply chain (for example, some customers will experience added difficulty in raising funds). Such points may also encourage unreasonable price hikes as supplies diminish, more collaboration between competitors, and a refusal to receive goods. These are all matters that should be considered as part of a rounded response to the coronavirus.
