Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
NOTE: This article was updated on March 30, 2020. Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.
In response to the COVID-19 outbreak, the Japanese government is considering a new law to enable the government to declare a state of emergency, cancel public events, and instruct people to stay indoors. The government is already recommending that large gatherings be cancelled, postponed, or scaled back until on or about March 19, 2020, when the counsel of professionals will provide its opinion. Given the rapid spread of the virus and its implications, employers are confronting difficult questions regarding how to handle safety and health rules, travel restrictions, privacy of employees’ health information, compensation, and other employment issues.
The following Frequently Asked Questions (FAQs) are designed to address some of the more common questions that employers with operations in Japan currently face. Employers are also encouraged to consult relevant guidance and FAQs put forth by the World Health Organization (WHO), the Japanese Ministry of Health, Labor and Welfare (links in English/Japanese), Prime Minister’s Office of Japan (links in English/Japanese), and the Ministry of Foreign Affairs Travel Warning and Advice (links in English/Japanese).
1. Should an employer restrict travel to all “affected areas” where there have been confirmed cases of COVID-19 infections, as reported by the World Health Organization (WHO)?
Employers can, as a precaution, impose travel restrictions if reasonable grounds exist to believe that doing so is necessary to prevent the spread of COVID-19 in the workplace. Employers should also rely on the Japanese government’s travel alerts restricting travel to high-risk areas.
On March 25, 2020, the Ministry of Foreign Affairs issued a travel warning of Level 2 (Avoid Non-Essential Travel) concerning all international travel outside Japan. Significantly affected areas - numerous European countries including France, Germany and Italy; Iran; and the Hubei Province of China - are designated as Level 3 (Avoid All Travel) locations. The level for the U.S. will be increased to Level 3 very soon.
2. What should an employer do if an employee shares that they plan to travel to an affected area?
Based on the Level 2 (Avoid Non-Essential Travel) warning by the government for all international travel, the employer can ask the employee to refrain from traveling abroad unless there is an essential reason for the travel. It is strongly recommended for an employer to request that an employee refrain from traveling to Level 3 countries.
3. How should an employer handle employees who have family members who have traveled to affected areas?
The employer can ask the employee to report whether they or any of the employee’s family members who traveled to the high-risk area are experiencing COVID-19-related symptoms. If the answer is in the affirmative, the employer can ask the employee to self-isolate and not come to the workplace for 14 days to confirm that the employee is not affected by COVID-19.
4. Can we prevent employees from traveling to affected areas for personal reasons?
See answer to Question #2. Yes. Generally, the law does not support an employer’s disciplinary action based on an employee’s off-duty conduct. Therefore, whether the employer can discipline the employee for traveling to a high-risk area should be determined on a case-by-case basis, taking all factors into consideration.
5. What discrimination issues should employers address/be aware of?
The employer is not allowed to discriminate against its employees based on their race or nationality. The employer can implement different measures for employees based on whether they pose a risk of infection, but such measures should be implemented regardless of these protected classifications.
6. What are the employer’s obligations to prevent harassment of those suspected of being infected?
Employers are required under the law to create and maintain a safe and healthy work environment for employees. Accordingly, employers should endeavor to prevent any type of harassment. Note, however, that the health-related information of individuals who are infected or suspected of being infected can be sensitive personal data, which should be treated carefully in compliance with the data privacy laws of Japan.
7. Can employers take the temperature of employees who are coming to work?
Yes, so long as the employee provides consent.
8. Are there any rules on what employers are allowed to do concerning subjecting employees to medical examinations or health-related tests that would apply to an emergency situation involving a communicable illness such as COVID-19?
Because an employee’s health information is considered sensitive personal information, an employee must consent to any medical examinations or tests.
SAFETY & HEALTH RULES
9. Are non-healthcare employees required to wear respirators or other personal protective equipment?
There is no specific requirement to wear respirators or other personal protective equipment. Some employers require their employees to wear masks, as needed.
10. Can an employer with a public-facing business prevent employees from wearing a surgical mask or respirator?
It is more common to wear a mask in Japan than in western countries to prevent contagion. An employer should allow the employee to wear the mask as doing so does not usually damage the business, and the employees might be able to protect themselves better with one.
11. What if an employee requests to wear some type of mask as an accommodation?
See answer to Question #10.
12. For employers that have events for large gatherings scheduled, should they cancel them?
As of March 20, 2020, the government is urging hosts to continue to carefully review whether large gatherings are necessary and whether, if held, the event could comply with guidelines issued by the expert council. The expert council states that large gatherings should be avoided unless the host finds it truly necessary to hold the event, takes all appropriate preventive measures, and avoids situations that can cause a COVID-19 cluster (i.e., a situation where three conditions arise: (i) poor ventilation; (ii) crowds; and (iii) individuals talking within arm’s length of each other).
13. Has your country’s government issued travel advisories? (If so, please summarize the guidance and provide a link to the government’s website (if applicable)).
The travel advisories for travel outside Japan can be found at the website of the Ministry of Foreign Affairs. See answer to Question #1. Travelers who are not Japanese citizens and stayed in a significantly affected area within 14 days prior to entering into Japan are subject to denial of permission to enter Japan. Those areas include European countries (including Italy, Spain and France), Iran, part of China, and South Korea. The U.S. likely will be added to the list very soon.
14. An employee who recently traveled to an affected area (in another country) is having difficulty re-entering your country. Can the employer help the employee get back into your country?
For now, the employer should wait and see until the restriction is lifted. If feasible, the employer should endeavor to allow them to work from outside Japan for a short period or place them on a special leave, as needed.
UNEMPLOYMENT & OCCUPATIONAL RISK LIABILITY
15. Do employer-instituted quarantines or temporary shutdowns or mass layoffs entitle workers to unemployment benefits or severance?
Employees are entitled to unemployment benefits only when their employment relationship is terminated. The government is providing public benefits to the employers that provide extra paid leave to prevent the spread of COVID-19 or for parents who have children affected by school closures.
16. What are an employer’s workers’ compensation obligations if an employee traveled to an affected area for work and contracted COVID-19?
The employer has a duty to keep the workplace healthy and safe. An employer might breach such duty if it forces its employee to travel to an affected area and the employee contracts COVID-19.
17. According to your government’s health department, what are the steps that employees should follow to notify the authorities that they suspect or are confirmed to have a COVID-19 infection?
According to the Ministry of Health, Labour and Welfare, if a person is experiencing the symptoms of a COVID-19 infection, they should contact the nearest public health center for a consultation. Click here for the Ministry’s FAQ with additional details. The medical care provider is required to report COVID-19 cases directly to the government’s health department.
18. Can an employer require employees to self-report having a COVID-19 infection?
Yes, as long as the stated motivation is to protect the health and safety of the workforce.
19. If one of our employees is quarantined, what information can we share with our employees? Who can we share it with?
The company may notify the workforce that an employee within the same location has a confirmed case of COVID-19 infection, and identify the next steps the company will take to keep the rest of the workforce safe and to prevent spread of the virus (e.g., the employee will not work in the location for a period of time, the company will conduct deep cleaning of the premises, etc.).
20. What privacy concerns do we need to be aware of when we are asking for the health information of our employees in order to evaluate whether they need to be quarantined?
Under Japanese law, health data is sensitive information that should be treated carefully to protect a person’s right to privacy. Unlawful infringement of the right to privacy constitutes a tortious act under the civil laws, which can form the basis for damages.
As this is a fluid and rapidly changing situation, please keep in mind that different or additional facts may warrant re-assessment of policies and practices so they can serve the best interest of employees, employers and the community at large.