A reader writes to Lifelines with yet another question about a perennial topic of concern, paid leave:
I just want to ask if I still have the right to get my paid leave at my company. I’ve already been working eight months at my company but I have not received any paid leave because I did not complete six months continuous working, because it happened that 2½ months into working at my company my father died and I needed to go back to my country for three weeks. But my contract is still continuous until now. Should they still give me paid leave or not?
Workers who have been employed continuously for six months from the day of hiring are basically entitled to 10 working days of annual paid leave, even if that is ruled out in the employment contract. However, Article 39 of the Labor Standards Act states that workers are required to attend at least 80 percent of their “total working days” in order to be able to receive that paid leave.
As the purpose of this requirement is to exclude workers whose attendance rate is particularly low, exceptions are made in cases where there is a reasonable cause for absence. Therefore, in calculating this attendance rate, the law treats leave due to occupational injury or maternity, child-care or nursing-care leave as attendance.
Also, according to official circulars, the following do not count toward your total working days: annual paid holidays; days of no work due to strikes, lockouts or acts of God; leave for reasons attributable to the employer; and menstrual, celebratory or condolence leave provided in an employment contract.
In the reader’s case, if her contract was not terminated when she returned to her home country and she met the threshold of 80 percent attendance, she is entitled to receive the full 10 days of paid leave. Even if her attendance rate was below 80 percent, she could still argue that the period of her absence be excluded from the total working days — if her employment contract clearly provides a leave of absence in the event of a death in the immediate family and a specific period for that leave. (It should be noted, however, that it is uncommon in Japan for a leave of absence as long as three weeks to be granted.)
Toshiteru Shibaike is an attorney with the Foreign nationals and International Service Section at Tokyo Public Law Office, which handles a wide range of cases involving foreigners in the Tokyo area (03-5979-2880; www.t-pblo.jp/fiss) FISS lawyers address readers’ queries once a month. Your questions and other comments: email@example.com
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