On February 27, 2020, Prime Minister Shinzo Abe requested schools to close until spring vacation. This decision is causing stress for working parents with young children. I am one of them. In this article, I am going to introduce several issues concerning employers with employees absent from work due to the new coronavirus in a Q&A format with reference to the MLHW’s website.
Q1: What is the relevant law if an employer asks an employee to be absent from work?
It is Article 26 of the Labor Standards Act, which says as follows:
(Allowance for Absence from Work) Article 26 In the event of an absence from work for reasons attributable to the employer, the employer shall pay an allowance equal to at least 60 percent of the worker’s average wage to each worker concerned during the period of absence from work.
So, generally speaking, if an employer has its employee absent from work for a reason attributable to the employer, the employer has to pay an allowance equal to 60% or more of the employee’s average salary. The point is if there are “reasons attributable to the employer.”
Q2: If an employer asks its employee to be absent from work due to coronavirus infection, does the employer have to pay an allowance for absence from work?
No. Because it cannot be deemed as a “reason(s) attributable to the employer.” Instead, the employee should apply for invalidity benefit to the insurer such as the Society-managed Health Insurance.
Q3: If an employer has its employee be absent from work on suspicion of coronavirus infection, does the employer have to pay an allowance for absence from work?
It depends on if such suspicion is based on reasonable grounds. Employers should have such employees consult the nearest Returnee and Contactee Consultation Center (Kikoku-sha Sesshoku-sha Sodan Center), which is established within each public health center (Hoken-sho). As long as the employer’s decision is based on their advice, it will not be deemed as a “reason(s) attributable to the employer.”
Q4: If an employee is voluntarily absent from work due to a fever (without a diagnosis of coronavirus), does the employer have to pay an allowance for absence from work?
No. The employer may treat such cases the same as sick leave. However, if the employer asks him/her to be absent from work on suspicion of infection of the coronavirus only because of a fever, such absence could be deemed as a “reason(s) attributable to the employer” (see Q3).
Q5: If an employer has no choice but to suspend its business due to the coronavirus, does the employer have to pay an allowance for absence from work?
No. As long as the suspension of business is beyond human control (legally called Force Majeure), it cannot be deemed as a “reason(s) attributable to the employer.” However, it might not be assessed as Force Majeure if the influence of the coronavirus is indirect to their business, for instance, the suspension is due to the suspension of the supplier’s business in China.
Q6: Can an employer ask an employee who is suspected to be infected with the coronavirus to take an annual leave?
No. Because employees have the right to choose the date of their annual leave. Employers cannot one-sidedly decide that.
Q7: If the employee in question is a part-time worker, a dispatched worker or a fixed-term contract worker is there any difference in allowance for absence from work and annual leave?
No.
Q8: If the employee in question is a foreigner, is there any difference in allowance for absence from work and annual leave?
No.
Q9: Can an employer create special paid-leave in relation to the coronavirus?
Yes. The Government has decided to provide subsidies to small and medium-sized businesses that have created a special leave system regarding the coronavirus. The details will be announced shortly.
Q10 Does the Government give us any other support?
Yes. The Government is going to provide subsidies to businesses that let their employees take a paid-leave other than an annual leave to look after their children whose schools are closed. They will be announcing details shortly.
Q11 Is the support in Q10 applicable to an employer who employs foreigners?
Yes.
Disclaimer: While every effort has been made to ensure that the information on this article is accurate at the time of posting, it is not intended to provide legal advice as individual situations will differ. If you do require advice or wish to find out more about the information provided and related topics, please contact the author.
Text by: Atty. Atsushi Miyake of Miyake Law, Mar. 2020.
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