Over a career in Japan spanning 21 years, Osaka-based English language teacher Steven Thompson has taken 10 days of paid sick leave across two occasions when he caught the flu.
But from April that basic safety net will no longer be available to him, as Osaka Prefecture is set to abolish paid sick leave for nonregular teachers at local public schools, including English-language teachers. Many are concerned that if they become infected with a disease, such as COVID-19, or appear to have symptoms, they will be expected to stay at home without pay.
According to the Osaka Prefectural Government, the move is aimed at balancing inequalities between different professions, as the special paid leave Thompson and other part-time foreign language teachers have been entitled to wasn’t granted to all part-time workers. Teachers who benefited from the system needed a medical certificate with a sick note from the doctor to apply for it. The prefectural government explains that while the change will affect part-time teachers including foreign language teachers, it is not targeted directly at foreign nationals. The teachers will still be able to take sick leave as an unpaid “special leave,” according to the prefecture.
“We were told… that if you have the coronavirus, then the national government will pay for your salary but you have to get tested for the coronavirus,” said Thompson, 53. He would like the prefecture to continue offering sick leave.
With COVID-19 yet to be contained, teachers like Thompson and other nonregular workers who don’t have much paid leave face the possibility that they will need to stay at home without pay.
“We’ve received about 200 complaints from people concerned about their working conditions due to the coronavirus outbreak, including about 30 foreign nationals, some of whom are teachers,” said Makoto Iwahashi, a member of labor rights group Posse.
Since the schools are closed, they have been told not to attend and that they won’t be paid during those days, Iwahashi explained.
Here are some questions and answers on the current legal frameworks in place for nonregular workers and sick absence:
Can employers tell their workers to be absent from work?
Yes. Under the law, employers have the authority to tell their workers whether they should report to work or be absent from work.
Will employees be compensated if they are told to be absent from work?
Workers can claim their right to compensation based on Article 26 of the Labor Standards Law, which stipulates that if a company tells its workers not to come to work due to reasons stemming from the employer, the company needs to pay at least 60 percent of the worker’s average wage during the period of absence.
Most employers guarantee in work regulations that employees working full time receive 100 percent of earnings. But according to Shinya Ouchi, a professor of law at Kobe University who specializes in labor issues faced by nonregular workers, such workers don’t benefit from such clauses.
The labor ministry even suggests that companies should offer compensation higher than 60 percent of the employee’s earnings “so that employees feel secure” when they take time off.
But that recommendation depends on whether or not the situation employers are dealing with during the pandemic is deemed an “act of God,” a term used to describe unforeseen events such as natural disasters.
If there is a natural disaster, companies won’t be obliged to pay the wages stipulated in the law, Ouchi explained, adding that whether workers will be compensated is likely to be determined on a case-by-case basis. It will also depend on what is stipulated in the regulations of individual companies, he said.
“Whether the employer will compensate the worker will depend on rights guaranteed in the worker’s contract or corporate regulations,” Ouchi said. “That’s why facing the possibility of not being paid, many people will force themselves to show up for work while being sick.”
What happens when companies go out of business?
Companies that are unable to continue their business operations may be exempted from such responsibilities.
For example, when companies were unable to operate due to power outages following the March 2011 triple meltdowns at the Fukushima No. 1 nuclear power plant, they were exempt from paying wages, according to Masatoshi Ohki, a professor of social and labor law at Waseda University School of Law.
What if an employee is unable to return to work because he or she is concerned about being infected with COVID-19?
If an employee is either required to self-isolate because he or she has had contact with an infected person, or is simply worried about their health, they will be required to use annual paid leave.
Only when an employer tells its staff not to come to work is such leave required to be compensated.
On the other hand, the health ministry has issued instructions that employees who test positive for COVID-19 and are insured will be eligible for sickness allowance equal to two-thirds of their average daily wage over the most recent 12-month period.
If a worker feels uncomfortable riding the train or going to the office due to concerns over being infected with COVID-19, can he or she stay at home?
Not unless the company allows its employees to work from home. Legally speaking, all employers are responsible for providing a safe workplace under the Labor Contract Law. But for many school teachers and workers, taking a day off may not be an option because no existing legislation guarantees financial support in such situations.
“For people who find commuting to work risky or are unable to go to work as they care for a child, the Japanese legal system doesn’t offer any financial support,” said Posse’s Iwahashi. “In those cases, the worker can only ask the employer to grant them special paid leave.”
“But they can ask the company to step up measures to ensure safety in the workplace,” Iwahashi added.
But not offering any option other than to come to the office despite the COVID-19 scare may trigger a different sort of legal problem. Ouchi said that the lack of clear directives banning commuting to the office amid the pandemic could lead to civil court disputes if an employer fails to prevent its workers from contracting the virus or transmitting it to others.
In one such scenario, a teacher who unknowingly infects another worker or a student, resulting in serious health issues, could be sued for inflicting bodily harm, while the school could face a lawsuit for unknowingly allowing the teacher to come to work.
“But rather than amending any laws, the central government should provide more financial assistance to business owners that would enable them to compensate workers, and thus exempt them from making decisions on whether to endanger their staff’s health and lives,” Ouchi said. “Such a solution would help protect nonregular employees who are the most vulnerable.”
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