Managing HR Through COVID-19
A Practical Guide For Multinational Employers
Prepared by Anderson Mori & Tomotsune
As as April 24, 2020
This guide will help employers manage HR legal and practical issues arising from COVID-19.
- Good Practice Guidance giving high-level consideration;
- An Action Point Checklist drilling down into the detail; and
- Answers to Key Questions facing employers in Japan.
This publication has been coordinated by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available here.
It has been prepared by Anderson Mori & Tomotsune and is published with their kind permission. With thanks to:
Anderson Mori & Tomotsune | Nobuhito Sawasaki | firstname.lastname@example.org | www.amt-law.com/en
There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:
1. Keep up-to-date with accurate information
It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories and the World Health Organization (“WHO“) website, and check that the information they receive is factually correct.
2. Know where your employees are and where they have been
An employer cannot keep its employees out of harm’s way if it does not know where they are and where they have been. As outbreaks of COVID-19 occur in various parts of the world, keep track of which of your employees could be at risk.
3. Communicate with your employees
Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace.
4. Provide a safe platform for employees to raise concerns
Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting.
There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues.
5. If you can be flexible, then be flexible
Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need more time off as school classes are suspended).
This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.
6. One size may not fit all
While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law.
Action Point Checklist
In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.
- Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
- Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
- Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
- Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
- Ensure contact details for all staff are up-to-date.
- Undertake a risk analysis of high-risk groups of employees, and what steps can be taken to try and reduce risks for those groups. These groups may include:
- those who travel frequently to countries where there is currently or may well in future be a risk of infection.
- those with health issues, such as asthma, diabetes, cancer, or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
- Review procedures in the office for preventing the spread of the virus, e.g., increased cleaning, availability of hand sanitizers and tissues etc.
- Review planning for the possibility of large scale absenteeism. For example:
- Identifying the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required?
- Identifying employees with transferable skills so that these essential positions can always be temporarily filled.
- Considering flexible work patterns, such as employees working from home.
- Identifying those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).
- Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
- What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
- Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact? If there is no such committee, the employer may want to consider setting one up.
- Communicate as a matter of urgency with the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
- Ensure managers are aware of the relevant workplace policies.
- Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus. What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as any official reporting process.
- Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus. For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
- Make clear that where staff are ill, they must not come to work regardless, i.e., “struggle through”.
- Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
- Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
- How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact-based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
- Who will have the authority to determine changes to policy and issue any new communications to staff?
- Log employee travel before it is booked and check against the latest travel protocols.
- Ensure staff know that this applies to personal travel as well as business travel.
- Encourage staff to tell you if close family members with whom they share a house are travelling to infected areas.
- Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
- Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.
As at April 24, 2020
1. What are an employer’s main legal obligations?
The main areas of an employer’s legal liability associated with COVID-19 in the workplace include:
- ensuring so far as reasonably practicable the workplace health and safety of employees (i.e., obligations under the Industrial Safety and Health Act (“ISHA“) and the Labor Contract Act (“LCA“));
- complying with obligations under the contract of employment and the rules of employment (e.g., continuing to pay wages, ensuring the employee works within the terms of the contract of employment); and
- complying with the Health Insurance Act (e.g., enrollment in a health insurance program and payment of health insurance premiums).
An employer may also wish to review its existing insurance policies, including medical insurance, evacuation cover and business interruption.
2. Do I need to prepare for and have in place a workplace plan to deal with COVID-19?
There is no legal obligation in Japan on an employer to specifically have a workplace COVID-19 response plan. However, the ISHA and the LCA require all employers in Japan to, so far as reasonably practicable, ensure the safety and health at work of all their employees. One reasonably practicable step an employer could take is to develop a plan dealing with workplace health and safety issues associated with COVID-19.
We recommend that employers prepare a detailed plan (if one is not already in place) and implement it. The more detailed the plan, the better prepared an employer will be to cope with any COVID-19 outbreak. A plan should deal with preparations to prevent an outbreak, what happens during the outbreak, and the steps to be taken after the outbreak. Both workplace health and safety issues and business continuity issues should be covered. The plan may be part of and/or a refinement of a broader plan already developed.
3. What should a workplace COVID-19 response plan cover?
The Ministry of Health, Labor and Welfare (“MHLW“) has issued some guidance which explains the preventive measures that may be taken and how to treat employment law issues.
The guidance can be accessed via the following links:
Please note these are links to the Japanese version of the guidance. If you select English from the language button placed at the top left, you will see a machine English translation of guidance.
4. Can I direct my employees to go home or stay at home if there is an outbreak?
If the employee is infected with COVID-19 and keeping the employee away from the workplace is reasonably necessary to protect public health (including employees working in the office), then the employer may direct the employee not to attend the workplace.
Even if employees are not infected with COVID-19, but it is reasonably necessary to protect public health (including the employees themselves), then the employer may direct the employees not to attend the workplace.
This is because, under Japanese law, it is generally understood that employees do not have a right to attend work. Accordingly, the employer can lawfully refuse employees’ attendance at work due to a COVID-19 outbreak regardless of whether employees are infected with COVID-19.
As for salary payment obligations, please refer to question 6.
5. Can I direct an employee to see a doctor?
Asking an employee to see a doctor is invasive and an employer would therefore generally require an express power in the rules of employment to direct an employee to see a doctor. Depending upon the circumstances, an employer may require an employee to obtain a clearance from a doctor before being allowed to enter the workplace.
6. Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?
If an employee has not been permitted to attend work and has performed their duties from home, pursuant to the employer’s instructions, the employer must pay the employee 100% of their salary. The payment of commutation allowance would not be necessary though.
If an employee has not been permitted to attend work and cannot perform their duties because they are infected with COVID-19, the employer is exempted from the payment of salaries. Alternatively, the employee can receive invalidity benefits from the health insurance.
If an employee who has not been permitted to attend work cannot perform their duties but is healthy enough to do so, whether the employer is obliged to pay the employee’s salary depends on the situation. For example, if there is a force majeure event which requires temporarily closure of the employer’s office, the employer would be exempted from the payment of salaries (please note that the scope of a force majeure event is quite narrowly interpreted. The MHLW’s recent view is that that the declaration of a state of emergency or a request or an instruction based on the Novel Flu Special Measures Act does not necessarily exempt employers from the obligation to pay allowances for leaves of absence (i.e., at least 60% of average wages) under the Labor Standards Act). By contrast, if the employer has decided on a temporary closure of the office based on its reasonable judgement but there is no force majeure event, the employer would be required to pay at least 60% of wages (or a higher amount, if the rules of employment so stipulate).
7. Can I quarantine certain staff to certain parts of an office or send them to a different office?
It depends but it is possible. Depending on the circumstances, an employer may ask an employee to work from a particular part of an office if it is reasonably necessary to ensure public health. As to whether an employer can send an employee to work in a different office, that would also depend on the circumstances, including whether the employee is contractually entitled to work at a particular location, the extent of the travel required and inconvenience suffered by changing the work location. For example, it may not be permissible to change an employee’s workplace from Japan to a place overseas when the employee does not usually travel as part of their duties.
8. Can I direct my employees to report suspected cases of COVID-19?
Yes, in the event of a COVID-19 outbreak, it is lawful and reasonable to ask employees to report if they suspect that they have COVID-19.
9. Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?
It depends. An employee can only lawfully refuse to attend work if there are objectively reasonable fears for the employee’s health and safety by attending work.
10. Can I screen employees and customers before allowing them to enter the workplace?
Yes. Depending upon the extent of the outbreak, the screening of employees and customers will be a reasonable step for an employer to take to reduce the risk of its employees being exposed to harm. However, it will be prudent to reach an understanding with employees and customers because there may be reputational and privacy issues.
CONTACT: Anderson Mori & Tomotsune | Nobuhito Sawasaki | email@example.com | www.amt-law.com/en
Appendix: Workplace COVID-19 Response Plan
A plan should deal with the following:
BEFORE AN OUTBREAK
- Preventive measures.
- Disinfecting the workplace regularly.
- Maintaining good indoor ventilation.
- Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
- Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
- If employees are required to travel to areas known to have the virus, whether such travel is necessary.
DURING AN OUTBREAK
- The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from government/official sources as to what steps need to be taken, e.g., quarantine requirements.
- Communication strategies such as how and what information will be communicated to employees, suppliers and customers.
- Where employees will work, e.g., home, in the office or in alternative temporary offices.
- At what stage will the workplace be closed and who will decide that.
- How to deal with infection and/or deaths of colleagues, e.g., counselling.
- A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
- What to do with high-risk/exposure staff (e.g., pregnant, key employees and employees who travel).
AFTER AN OUTBREAK
- Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
- Rehabilitation for sick employees returning to the workplace.
Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak. Therefore, depending on the circumstances, employers may wish to:
- Discuss with staff the possibility of a workplace closure prior to closing.
- Allow employees to take annual leave or unpaid leave once sick leave has been exhausted.
- Allow employees to work from home.
- Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down.
Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.
This publication by Anderson Mori & Tomotsune provides information and comments on legal issues and developments that may be of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek legal advice before taking any action with respect to the matters discussed herein.