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Asia employment law bulletin 2021

Japan

Developments in the light of COVID-19

Working from home

The adoption of remote working by employers in Japan in view of the COVID-19 pandemic is low compared to other jurisdictions. There are several reasons that can explain this phenomenon. For example, many employees in Japan commonly live in small housing and do not have private spaces in their homes for them to work in. Moreover, there is a tendency for Japanese workers to rely heavily on paper documents as opposed to electronic means to perform their work, making remote working a far less acceptable option for many.

That being said, there are a number of employers who have defied traditional working practices to welcome remote working or some other hybrid working arrangements. In such instances, as there are strict regulations around Japanese labour laws that govern working hours, employers should ensure that employees keep a proper record that track their actual hours of work performed and that there is no underreporting by employees of working hours for each workday when they work from home. Employers that have introduced work from home arrangements should also constantly monitor the adequacy of their working hours management systems to avoid any unintended breach of the law.

Other developments

Another question that may arise if an employer places its employees on leave as a result of  temporary office closure due to a public health emergency (for e.g. a Japanese government-issued lock down) or business hardship, is whether the employer is under any obligation to pay its employees salaries. The answer to this is likely yes. Article 26 of the Labour Standards Act (LSA) provides that an employer is liable to pay an employee 60 per cent or more of his/her salary as “involuntary leave allowance” if an employee is placed under involuntary leave as a result of a reason attributable to the employer. The meaning of an employer’s “reason”  under the LSA is broad to say the least, and can conceivably apply to any aspect of a business with few exceptions, such as a force majeure event. It is therefore generally difficult to be exempt from the payment of involuntary leave allowance even in those situations contemplated above.

Akiko Yamakawa, Vanguard

Misa Osagane, Vanguard