Asia-Pacific employment law bulletin 2022
Developments in the light of COVID-19
Working from home
Remote work seems to have been widely accepted in the Japanese society and will likely continue even after the pandemic comes to an end.
However, a point worth noting when introducing remote work on a company-wide basis is that employers must include provisions about any expenses that the employees might bear related to their employment. Article 89, Item 5 of the Labor Standards Act provides that if employees are required to bear food costs, supplies for work, or other such expenses, it must be stipulated in the rules of employment. “Other such expenses” means any expenses related to employment such as internet connection fees and electricity/water fees. In practice, an employer would normally provide PCs and other devices, however, it is uncommon for employers to cover internet connection fees for employees. In such cases, an employer must make sure to include wording in their rules of employment that such fees would be borne by the employees.
On the other hand, we have seen employers choose to provide a fixed monthly “remote work allowance” in place of a commute allowance, which used to be a common allowance given by companies in Japan. Specifics of the remote work allowance must also be clearly stipulated in the rules of employment.
Currently, there are no laws in Japan which provide a clear answer to the legality of mandatory vaccination for employees. However, a supplementary resolution was passed alongside a bill regarding COVID-19 vaccination, which serve as useful guidelines for employers. The resolution provides for the right of an individual to decide whether or not to get vaccinated and that discrimination, bullying, and disadvantageous treatment in workplaces and schools are strictly prohibited. Based on the wording of the supplementary resolution, requiring employees to get vaccinated is likely to be highly risky. Mandatory vaccination as a condition to access the workplace is also risky,
because shutting out unvaccinated employees could be considered “discriminatory” or “disadvantageous”.
Another frequently discussed topic that has arisen is whether employers can require their employees to submit their COVID-19 test results or vaccination status. COVID-19 test results are clearly considered “personal information that requires special care” under the Act on the Protection of Personal Information (the “APPI”). However, whether a person’s vaccination status could be considered “personal information requiring special care” is still up for debate. Under the APPI, employers are required to obtain employee consent when obtaining “personal information that requires special care”. Employers are also required to notify the employee of the purpose of use of any personal information.