Guidelines Concerning Measures to Be Taken by Employers to Facilitate the Coexistence of the Working Lives and Family Lives of Workers Who Take Care of or Are Going to Take Care of Children or Other Family Members

These guidelines have been established in order to promote the appropriate and effective implementation of the measures to be taken by employers to facilitate the coexistence of the working lives and family lives of workers who take care of or are going to take care of children or other family members, with respect to matters prescribed by the Law Concerning the Welfare of Workers Who Take Care of Children or Other Family Members, Including Child Care and Family Care Leave (referred to hereinafter as "the Law").

2. Matters to Serve As Guidelines for the Appropriate and Effective Implementation of Measures to Be Taken by Employers

(1) Matters in Determining the Applicability of the Provisions of Article 2, Numbered Item 1 of the Law Which Refer to Persons Employed for a Fixed Period
A person whose labour contract indicates that, formally, he or she is employed for a fixed term is eligible for child care leave and family care leave if there is essentially no difference between said contract and a contract with no fixed term. In determining whether this is the case, it is important to bear in mind the following matters:

(a) In reaching a decision in a court case contesting the propriety of termination of employment under a fixed-term labour contract, the actual state of the contractual relationship is assessed with particular attention to the following items:

i) the objective content of the duties in which the worker engages, e.g., whether they are permanent or temporary in nature, whether they are the same as those of regular employees, and so on;

ii) the nature of the worker's contractual status, e.g., whether it is integral or temporary;

iii) the subjective aspect of the parties, e.g., any speech or behavior of the employer that gave rise to expectations of continuing employment;

iv) the procedure for and record of contract renewals, e.g., whether the contract has been renewed and, if so, how many times; the strictness of the renewal procedure, and so on;

v) the situation of other workers with regard to renewal, e.g., whether the employment of other workers with a similar status has been terminated.

(b) In court cases contesting the propriety of termination of employment under a fixed-term labour contract, it has often been deemed that no essential difference exists between said contract and a contract with no fixed term if, in regard to the items listed in (a), the situation described in i) and ii) below applies:

i) in regard to (a) i), the duties are permanent in nature, and in regard to (a) iv), the contract has been renewed;

ii) in addition to i), at least one of the following applies:

(i) in regard to (a) iii), speech or behavior of the employer that gave rise to expectations of continuing employment is recognized;

(ii) in regard to (a) iv), the renewal procedure has the nature of a formality;

(iii) in regard to (a) v), there are almost no previous cases of termination of employment of workers with a similar status.

(c) In court cases contesting the propriety of termination of employment under a fixed-term labour contract, the fact that, in regard to (a) i), the worker's duties are deemed to be the same as those of a regular employee, or the fact that, in regard to (a) ii), the worker's status is deemed to be integral is considered to have influenced the courts in the direction of recognizing that no essential difference exists between said contract and a contract with no fixed term.

(3) Matters in Dealing Appropriately with the Prohibition of Dismissal or Other Disadvantageous Treatment by Reason of Applying for or Taking Child Care Leave or Family Care Leave As Provided in Article 10 or Article 16 of the Law
In the employment management of a worker who has applied for or taken child care leave or family care leave, it is important to bear in mind the following matters:

(a) The dismissal or other disadvantageous treatment prohibited by Articles 10 and 16 of the Law refers to an act that is in a relationship of cause and effect with the worker's having applied for or taken child care leave or family care leave.

(b) The following are examples of acts that constitute dismissal or other disadvantageous treatment:

i) dismissal;

ii) coercion to resign or to change a labour contract so that a regular employee becomes a part-time worker or other nonregular employee;

iii) ordering a worker to remain on standby at home;

iv) demotion;

v) reduction of pay or disadvantageous calculation of a bonus or other payment;

vi) disadvantageous change of assignment;

vii) acts detrimental to the working environment.

(c) The following matters shall be taken into consideration in determining whether an act constitutes dismissal or other disadvantageous treatment:

i) even if the worker's consent has ostensibly been obtained, in the event that said consent is deemed not to be truly voluntary, induced resignation or change of a labour contract so that a regular employee becomes a part-time worker or other nonregular employee constitutes "coercion to resign or to change a labour contract so that a regular employee becomes a part-time worker or other nonregular employee" as referred to in (b) ii);

ii) an employer's coercion of a worker to remain on leave beyond the scheduled ending day of leave constitutes "ordering a worker to remain on standby at home" as referred to in (b) iii);

iii) it does not constitute disadvantageous treatment to treat a worker as not having worked during a leave period, e.g., by not paying wages during said period, or to exclude said period pro rata from the period on which calculation of retirement pay, bonus, or other payment is based in cases where the number of days actually worked is taken into consideration; however, treating a worker as not having worked for a period exceeding the leave period constitutes "disadvantageous calculation" as referred to in (b) v);

iv) whether a change of assignment constitutes disadvantageous treatment should be judged on the basis of an overall comparison of conditions before and after the reassignment, such as wages and other working conditions, the situation in regard to commuting, and the effect on the worker's future; for example, causing a worker significant economic or mental hardship by changing said worker's duties or place of work in a way that cannot be explained fully by the normal rules of personnel transfer constitutes "disadvantageous change of assignment" as referred to in (b) vi);

v) acts such as not allowing a worker to engage in work duties, or making a worker engage only in miscellaneous duties, constitute "acts detrimental to the working environment" as referred to in (b) vii).

(a) With regard to limitation of extension of working hours, it is important that an employer attend to introducing a system and stipulating regulations in advance.

(b) It is important that the limitation of extension of working hours be determined in such a way that a worker is not dismissed or otherwise treated disadvantageously by reason of having requested or received limitation of extension of working hours.

(5) Matters Concerning Limitation of Late-Night Work As Provided for in Articles 19 and 20 of the Law

(a) With regard to limitation of late-night work, it is important that an employer attend to introducing a system and stipulating regulations in advance.

(b) It is important to give consideration in advance to determining matters concerning the treatment of workers during limitation of late-night work (including whether or not they will be reassigned to daytime work) and to taking measures to make these matters widely known to workers.

(c) It is important to give consideration to enabling workers to utilize the system flexibly in response to the varied situations in which said workers take care of children or other family members, said workers' varied working situations, and similar circumstances.

(d) It is important that the limitation of late-night work be determined in such a way that a worker is not dismissed or otherwise treated disadvantageously by reason of having requested or received limitation of late-night work.

(7) Matters in Taking Necessary Measures Concerning the Assignment and Other Employment Management of Workers in Business Establishments Where Workers Who Take Child Care Leave or Family Care Leave Are Employed, As Provided for in Article 22 of the Law

(a) It is important to give consideration so that, as a general rule, most workers who take child care leave or family care leave are reinstated thereafter to their original position or its equivalent.

(b) It is important to give consideration to the need to make the point stated in (a) a basic premise of employment management, such as assignments, of workers other than those who take child care leave or family care leave.

(a) It is important that workers who take child care leave or family care leave should have a choice as to whether or not said measures are applied to them.

(b) In view of the fact that child care leave or family care leave can extend over a relatively long period, and the fact that the necessary measures for a smooth return to work after such leave vary according to the individual worker's situation, including type of occupation, job status, and professional attitude, it is important to give consideration to the desirability of taking measures which are both appropriate to the individual worker's situation and systematic.

(a) It is important that said measures be determined in such a way that a worker is not dismissed or otherwise treated disadvantageously by reason of having applied for or received application of said measures.

(b) It is important that said measures not be applicable against the will of a worker for longer than the requested period.

(c) With regard to a part-time work system, it is important to give consideration to the desirability of its contents being such that they effectively facilitate a worker's taking care of a child or a Subject Family Member in need of care while working.

(11) Matters in Taking Necessary Measures Determined with Consideration to the Term and Frequency with Which Family Care Is Required, in Accordance with a System of Family Care Leave or the Measures Provided for in Article 23, Paragraph 2 of the Law, As Prescribed in Article 24, Paragraph 2 of the Law

(a) It is important that workers should have a choice as to whether or not said measures are applied to them.

(b) It is important to give consideration to the desirability of taking necessary measures while taking into account the need to harmonize such measures with the burden on the company entailed by employment management, etc., and bearing in mind the following matters:

i) more than 3 months may elapse between the onset and stabilization of the condition of a family member of whom said worker is taking care, or between the onset of said condition and the time when said worker can utilize care-related services;

ii) after having ceased to require care, a Subject Family Member involved in family care leave taken by said worker or in measures taken by the employer with regard to said worker as provided for in Article 23, paragraph 2 of the Law may return to a condition requiring care by said worker;

iii) in some cases, such as where there are no other close relatives, there may be a great necessity for said worker to take care of a family member other than a Subject Family Member;

iv) even a worker who takes care of a family member who is not in Need of Care may have difficulty in working as a result of taking care of said family member;

v) the said worker may wish to be able to utilize the system flexibly in response to a varying degree of necessity to take care of a family member.

(13) Matters in Giving Consideration to a Worker's Situation with Regard to Taking Care of a Child or Family Member, As Provided for in Article 26 of the Law, When Seeking to Make a Change to Said Worker's Assignment Which Involves a Change in Said Worker's Place of Work Matters to be considered include, for example, ascertaining said worker's situation with regard to taking care of the child or family member, taking said worker's own wishes into consideration,and confirming whether there are alternative means of taking care of the child or family member in the event of a change in assignment involving a change in said worker's place of work.