Can an employer require compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
No. Even if an employer has a ground under its rules of employment (work rules) to give an order regarding its employees’ duties, such order needs to be reasonable and appropriate to mandate its employees to follow the order. Since the vaccine may cause side effects or allergic reactions for certain persons, in general, ordering employees to take the vaccine will not be considered reasonable and appropriate. Thus, an employer may not mandate vaccination as a condition of employment and the employees may decide to take the vaccine at their own discretion.
Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?
Employees can refuse to get vaccinated. On the other hand, since employers have the duty to ensure the safety of the workplace, it is desirable for them to take various measures to protect employees’ health, such as thoroughly disinfecting the workplace, requiring employees to wear masks at the workplace, avoiding meetings in a way that causes unnecessary crowding, and adjusting the number of employees who come to the office so that physical distancing among employees can be maintained. The employer can also take preventive measures such as asking employees who are suspected of being infected to refrain from coming to the office.
In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination?
It is up to the employees to decide whether to get vaccinated, and the employer may not discipline an employee for refusing to get vaccinated. Regarding disciplinary actions against employees, Article 15 of the Labor Contract Law of Japan states that "if an employer takes disciplinary action against an employee and such disciplinary action lacks objectively reasonable grounds and is not found to be appropriate in general societal terms in light of the characteristics and mode of the act committed by the employee pertaining to such disciplinary action and any other circumstances, such disciplinary action shall be treated as an abuse of rights and be invalid."
What benefits or accommodations do employers have to make for vaccinated employees?
There is no need to provide benefits or accommodations to employees who get vaccinated. Unlike in the U.S., efforts to provide incentives to those who get vaccinated have not gained traction in Japan where vaccine rollout is slow. At the local government level, there are plans to give incentives such as gift certificates and points to people who get vaccinated.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
The employer may order the employees to come to work at the workplace stipulated in the employment agreement. An employee who refuses to come to work even though the employer has ordered him to come to work, can be considered absent from work. However, the employer is obliged to ensure the safety of the workplace and it is necessary to take measures as described in the answer to the second question above. If ensuring the safety of employees in the workplace would be difficult, the employer should consider measures such as allowing the employees to work remotely. In addition, if an employee who has been ordered to go to work has asked to take the annual paid leave for such days, the employer may not change the days unless the designated days will be detrimental to the business of the employer.
In your country, are employers required to provide paid leave for employees to get vaccinated?
In Japan, employers are not mandated to provide additional paid leave for employees to get vaccinated. However, the government encourages employers to introduce a special paid vaccination leave, and some companies have actually started introducing it.
Can employers require the wearing of masks (mask mandate) in the workplace?
In general, yes.
It is understood that an employer may issue instructions or orders (hereinafter referred to as “work orders”) to its employees to carry out its business (i) based on work rules that are rational, or (ii) even if there are no work rules, within the scope of the employee’s obligations to keep company order and to act in good faith considering the interests of the employer. Employees are obliged to follow the work orders under the employment contract. Provided that, the work orders cannot be issued unreasonably and shall be permitted only to a reasonable extent necessary for the performance of business, in light of the fact that work orders may be associated with restrictions on the personal interests and freedom of employees.
Since employers have the duty to ensure the safety of the workplace under the Labor Contract Act, they are required to take various measures to protect employees’ health. In addition, if an employee becomes infected with COVID-19, the infection may cause not only the employee’s incapacity to perform his/her duties but also disruption in the workplace, which will impede the conduct of business. Then employers must take measures against COVID-19.
Wearing a mask does not require much time or effort, and it is generally not considered to be of a nature that impairs the personal interests of employees. Therefore, under the circumstances where COVID-19 is spreading, the employer can oblige the employees to wear a mask as a work order. However, if there is a reasonable excuse for not wearing a mask (e.g., where wearing a mask is a problem because of a skin disease), such a business order may not be issued. If the employer obliges the employees to wear masks, it is desirable that the employer provides the masks at no cost to the employees.
Employees who violate a mask mandate may be subject to disciplinary actions for violation of business orders. However, if the disciplinary actions are imposed immediately without checking the circumstances and awareness of the workers and considering the corresponding measures, such disciplinary actions may be deemed unreasonable and adjudged invalid. Therefore, in practice, even if an employee violates a mask mandate, it is appropriate to first respond with caution and guidance that does not lead to a disciplinary action. Taking a disciplinary action should be appropriate only when the degree of malice or seriousness of the violation is considered high (e.g., the employee intentionally ignores the caution and guidance repeatedly).
Will an employer be liable for any illness that occurs years later (assuming the causal relationship has been established) as a result of a mask mandate?
Although it is generally unlikely, it may be liable in particular cases.
An employer would be liable for damages only on the condition that the employer was able to predict the occurrence of the damages at the time of mask mandate. In general, it should be unlikely that an employer will be liable for damages, under current circumstances where the guidelines of the Ministry of Health, Labor and Welfare state that wearing a mask is one of the effective ways of preventing the spread of COVID-19, and the Keidanren (Japan Business Federation) guidelines for preventing the spread of COVID-19 in offices also state that one of the ways of preventing the spread of COVID-19 is to ensure that employees always try to wear masks. However, since liability for damages is determined by the presence or absence of predictability on a case-by-case basis with respect to each employee, employers may be held liable in particular cases, for example, where an employer imposes mask mandate on employees who have difficulty wearing masks due to skin diseases, which may cause any illness years later.