Guidelines for Measures to be Taken by Employers to Help Balance Work Life and Family Life for Workers who Take Care or are going to Take Care of Children or Other Family Members

I　Purposes

1　Matters related to an Child Care Leave or Family Care Leave Application by a worker pursuant to the provisions of Articles 5 and 11 of the Act

(1)　Matters in determining the applicability of persons employed for a fixed period of time prescribed in paragraph (1) of Articles 5 and 11 of the Act

In cases where a person whose labor contract indicates that, formally, he or she is employed for a fixed period and there is substantially no difference between said contract and a contract with no fixed period, he or she is eligible for Child Care Leave and Family Care Leave as a worker who is substantially employed under a labor contract with no fixed period regardless of whether or not the worker meets the requirements prescribed in items of paragraph (1) of Articles 5 and 11 of the Act. In determining whether this is the case, employers shall bear in mind the following matters.

(i)　In the process of a decision in a court case contesting the propriety of termination of employment under a fixed-period labor contract, the actual situation of the contractual relationship is assessed with particular attention to the following items:

(a)　Objective nature of the duties in which the worker engages, such as whether or not the duties are permanent or temporary in nature, and whether or not they are the same as those of regular employees;

(b)　Nature of the worker's contractual status, such as whether it is integral or temporary;

(c)　Subjective aspect of the parties, such as any speech or behavior of an employer that gave rise to expectations of continued employment;

(d)　Procedure and actual situation of contract renewals, such as whether or not the contract has been renewed and how many times, and the level of strictness of the renewal procedure; and

(e)　Situation of the contract renewals of other workers, such as whether or not there is termination of employment of the other workers with a similar status.

(ii)　In court cases contesting the propriety of termination of employment under a fixed-period labor contract, with regard to the items listed in (i), it has often been deemed that there is substantially no difference between said contract and a contract with no fixed period in cases where there are situations described in the following (a) and (b):

(a)　With regard to (i)(a), nature of the duties is permanent, and with regard to (i)(d), the contract has been renewed;

(b)　In addition to (a), at least one of actual situations listed in the following items is found;

1.　With regard to (i)(c), there is any speech or behavior of the employer that gave rise to expectations of continued employment;

2.　With regard to (i)(d), the renewal procedure has the nature of a formality; or

3.　With regard to (i)(e), there were almost no previous cases of termination of employment of workers with a similar status.

(iii)　In court cases contesting the propriety of termination of employment under a fixed-period labor contract, with regard to (i)(a), the fact that the nature of duties is deemed to be the same as those of a regular employee, or with regard to (i)(b), the fact that the worker’s status is deemed to be integral, are considered to have influenced the courts in the direction of recognizing that there is no substantial difference between the said contract and a contract with no fixed period.

(2)　In determining whether or not a person who is employed for a fixed period of time is a worker who meets the requirements prescribed in items of paragraph (1) of Articles 5 and 11 of the Act, employers shall bear in mind the following matters.

(i)　The term "employed by an employer for a continued period of at least one year" set forth in item (i) of paragraph (1) of Articles 5 and 11 of the Act shall mean, with regard to one year immediately prior to the day of Child Care Leave or Family Care Leave Application, that the employment relationship has substantially continued according to the actual situation of employment, and shall not mean that the relationship is determined depending whether or not a contract period continues formally.

(ii)　Determining whether or not a person is "likely to be kept employed after the day on which his/her dependent child reaches one year of age (hereinafter referred to in this Article as "Date of One Year of Age")" set forth in Article 5 paragraph (1) item (ii) of the Act shall depend on whether there is a considerable possibility of continued employment based on the known circumstances at the time of Child Care Leave Application. For example, a worker who falls under any of the following items (a) through (d) at the time of Child Care Leave Application shall be determined, in principle, as a worker who has the considerable possibility of continued employment, and a worker who falls under any of the following item (e), (f) or (g) shall not be determined, in principle, as a worker in the case he or she has the considerable possibility thereof; provided, however, that there could be cases where the possibility of continued employment is determined based on any speech or behavior of the employer with regard to prospects for continued employment, the situations of other workers with a similar status and of said workers' contracts renewed in the past, etc. Or a worker who does not fall under any of the following items at the time of Child Care Leave Application shall be determined based on any speech or behavior of an employer with regard to prospects for continued employment, situations of other workers with a similar status and of the said workers' contracts renewed in the past, etc.:

(a)　A worker whose end day of the labor contract that has been concluded at the time of Child Care Leave Application falls after the Date of One Year of Age;

(b)　When it has been clearly indicated to a worker orally or in writing that his/her labor contract may be renewed and the end day of the renewed labor contract falls after the Date of One Year of Age if a labor contact is renewed for the same period as the contract that has been concluded at the time of Child Care Leave Application;

(c)　When it has been clearly indicated to a worker orally or in writing that his/her labor contract shall be automatically renewed and there is no clear indication of the upper limit of frequency of automatic renewal;

(d)　When it has been clearly indicated to a worker orally or in writing that his/her labor contract shall be automatically renewed and the upper limit of frequency of the automatic renewal is clearly indicated, and then the end day of his/her labor contract renewed up to the limit falls after the Date of One Year of Age;

(e)　When it has been clearly indicated to a worker orally or in writing the upper limit of frequency of the renewal of the labor contract and the end day of his/her labor contract renewed up to the limit falls before the Date of One Year of Age;

(f)　When it has been clearly indicated to a worker orally or in writing that his/her labor contract shall not be renewed and the end day of the labor contract that has been concluded at the time of Child Care Leave Application falls before the Date of One Year of Age; or

(g)　When it has been clearly indicated to a worker orally or in writing that his/her labor contract shall be renewed and the end day of his/her renewed labor contract falls before the Date of One year of Age if a labor contract is renewed for the same period as the contract that has been concluded at the time of Child Care Leave Application.

(iii)　Determining whether or not the "labor contract will expire and clearly not be renewed during the subsequent year from the Date of One Year of Age" set forth in Article 5 paragraph (1) item (ii) of the Act shall depend on the certainty that the contract is not to be renewed based on the known circumstances at the time of Child Care Leave Application. For example, a worker who falls under any of the following items at the time of Child Care Leave Application shall be determined, in principle, as a worker in the case that a labor contract is certainly not to be renewed; provided, however, that even a worker who falls under any of the following items could not be determined as a worker in this case based on any speech or behavior of an employer with regard to prospects for continued employment, situations of other workers with a similar status and of the said workers' contracts renewed in the past, etc.:

(a)　When the upper limit of frequency of the renewal of the labor contract is clearly indicated to a worker orally or in writing, and then the end day of his/her labor contract renewed up to the limit falls before the date when one year elapses from the Date of One Year of Age; or

(b)　When it has been clearly indicated to a worker orally or in writing that his/her labor contract shall not be renewed and the end day of the labor contract that has been concluded at the time of Child Care Leave Application falls before the date when one year elapses from the Date of One Year of Age.

(iv)　Whether or not a worker meets the requirement set forth in Article 11 paragraph (1) item (ii) of the Act shall be determined in the same way as stipulated in (ii) and (iii). In this case, the term "Date of One Year of Age" in (ii) and (iii) shall be deemed to be replaced with "93-day Expiry Date (the date on which 93 days elapse prescribed in Article 11 paragraph (1) item (ii) of the Act)."

(3)　Other matters concerning a worker’s Child Care Leave Application and Family Care Leave pursuant to the provisions of Articles 5 and 11 of the Act.

With regard to Child Care Leave and Family Care Leave, employers shall bear in mind that a system shall be introduced and regulations be stipulated in advance so that workers can easily take such leave.

2　Matters concerning Sick/Injured Child Care Leave prescribed by Article 16-2 of the Act

(1)　With regard to Sick/Injured Child Care Leave, employers shall bear in mind that a system should be introduced and regulations be stipulated in advance so that workers can easily take such leave.

(2)　Since Sick/Injured Child Care Leave is a leave to look after said child in the event of injured or sick child in actually, consideration shall be given not to impose a severe burden on a worker, such as allowing the worker to submit documents that certify such injury or illness after the fact when such submission is required.

(3)　Consideration shall be given so that the system can be utilized flexibly since there are a variety of symptoms of a child of a worker and his/her working situations, etc.

3　Matters in Appropriate Dealing with the Prohibition of Dismissal or Other Disadvantageous Treatment by Reason of Applying for or Taking Child Care Leave, Family Care Leave or Sick/Injured Child Care Leave pursuant to the Provisions of Articles 10, 16, and 16-4 of the Act.

In the employment management of a worker who has applied for or taken Child Care Leave, Family Care Leave, or sick/Injured Child Care Leave, employers shall bear in mind the following matters:

(1)　The dismissal or other disadvantageous treatment prohibited by the provisions of Articles 10, 16 and 16-4 of the Act 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, Family Care Leave or Sick/Injured Child Care Leave;

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

(i)　Dismissal;

(ii)　Not renewing a contract for a worker employed for a fixed period of time;

(iii)　Reduction of frequency of contract renewal when the upper limit of frequency thereof is clearly indicated in advance;

(iv)　Compulsion to retire or to change labor contract such that a regular employee becomes a non-regular employee, such as a part-time worker;

(v)　Ordering a worker to remain on standby at home;

(vi)　Demotion;

(vii)　Reduction of pay or disadvantageous calculation of bonus or other payment;

(viii)　Disadvantageous change of assignment; and

(ix)　Acts detrimental to the working environment.

(3)　The following matters shall be taken into consideration in determining whether or not 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, resignation at his/her employer’s suggestion or a change of labor contract such that a regular employee becomes non-regular employee, such as a part-time worker constitutes "compulsion to retire or to change labor contract such that a regular employee becomes non-regular employee, such as a part-time worker" set forth in (2) (iv);

(ii)　An employer’s coercion to make a worker remain on leave beyond the end date of Child Care Leave or Family Care Leave, or take leave another day than the day pertaining to the application for Sick/Injured Child Care Leave constitutes "to remain on standby at home" set forth in (2) (v);

(iii)　It does not constitute disadvantageous treatment to treat a worker as not having worked during a period of Child Care Leave, Family Care Leave or Sick/Injured Child Care Leave, e.g., by not paying wages during the period of said leave, or excluding a period of said leave pro rata from the period which becomes a basis for calculation of retirement pay, bonus when the number of days when he or she actually worked is taken into consideration; however, treating a worker as not having worked for a period exceeding said leave period constitutes the "disadvantageous calculation" set forth in (2) (vii);

(iv)　Whether or not a change of assignment constitutes disadvantageous treatment shall be determined on the basis of a comprehensive comparison of the situation before and after the reassignment, such as wages and other working conditions, the worker’s commuting situation, and the influence on the worker’s future; for example, when a worker incurs a considerable economic and mental disadvantage due to a change of said worker’s duties or workplace which cannot be explained fully by the ordinary rules of personnel transfer, such a change constitutes a "disadvantageous change of assignment" set forth in (2) (viii); and

(v)　Acts such as not allowing a worker to engage in his/her business, and making a worker engage only in miscellaneous duties, constitute the "acts detrimental to the working environment" as referred to in (2) (ix).

4　Matters concerning Limitation on Overtime Work pursuant to the Provisions of Articles 17 and 18 of the Act:

(1)　With regard to a limitation on overtime work, employers shall bear in mind that a system should be introduced and regulations be stipulated in advance so that a worker can easily take such a limitation measure; and

(2)　Employers shall not dismiss or treat disadvantageously a worker by reason of the worker’s having requested or taken a measure for the limitation on overtime work.

5　Matters concerning Limitation on Late-Night Work pursuant to the Provisions of Articles 19 and 20 of the Act:

(1)　With regard to a limitation on late-night work, employers shall bear in mind that a system should be introduced and regulations be stipulated in advance so that a worker can easily take such a limitation measure;

(2)　Matters concerning the treatment of a worker during a limitation period of late-night work (including reassignment to a daytime shift) shall be stipulated in advance, and consideration shall be given so that measures are taken to make these matters widely known to workers;

(3)　Consideration shall be given so that the system can be utilized flexibly since there are a variety of situations of a worker’s taking care of a child or a family member and his/her working situations, etc.; and

(4)　Employers shall not dismiss or treat disadvantageously a worker by reason of the worker’s having requested or taken a measure for a limitation of late-night work.

6　Matters in stipulating items concerning Child Care Leave and Family Care Leave pursuant to the provision of Article 21 paragraph (1) of the Act and in making said items widely known to workers

Employers shall consider that it is desirable to stipulate a set of regulations with regard to treatment during Child Care Leave and Family Care Leave, wages after Child Care Leave and after Family Care Leave, and assignments and other working conditions and other necessary matters, and then to make said regulations widely known to workers.

7　Matters in taking necessary measures concerning workers’ assignment and other employment management at a workplace where workers who take Child Care Leave or Family Care Leave are employed pursuant to the provision of Article 22 of the Act:

(1)　Employers shall consider that there are employment practices where workers who take Child Care Leave or Family Care Leave return, in principle, to their original posts or those equivalent to the original ones; and

(2)　Employers shall consider that it is necessary that employment management including workers’ assignments with regard to workers other than those who take Child Care Leave or Family Care Leave should be implemented on the premise of what is stated in the item (1).

8　Matters in taking necessary measures concerning development, improvement, etc. of vocational capabilities of workers who are taking Child Care Leave or Family Care Leave pursuant the provision of Article 22 of the Act:

(1)　A worker who takes Child Care Leave or Family Care Leave shall have a choice of whether or not he or she is subject to said measures; and

(2)　In view of the fact that Child Care Leave or Family Care Leave can extend over a relatively long period, and the fact that necessary measures for a smooth return to work after such leave vary according to worker’s situations including type of job, job status, and job consciousness, employers shall consider that it is desirable to deal appropriately with said worker's situations and to take the measures in a planned way.

9　Matters in taking measures equivalent to the system of Child Care Leave or measures including shortening of working hours pursuant to the provision of Article 23 paragraph (1) of the Act, and measures that facilitate the worker to take care of the subject family member in Care-requiring Condition while continuing working pursuant to the provision of Article 23 paragraph (2) of the Act:

(1)　Employers shall not dismiss or treat disadvantageously a worker by reason of the worker’s having requested or taken said measure;

(2)　Employers shall not apply said measures to a worker against his/her will beyond the period for which the worker wishes to be considered;

(3)　Employers shall, in taking said measures, also take into consideration to the fact that a worker who takes care of his/her child while continuing working has a great need for a system of short-time working that actually reduces working hours; and

(4)　Employers shall consider that it is desirable that a system of short-time working substantially facilitates a worker to take care of a child or a subject family member in Care-requiring Condition while continuing working.

10　Matters in taking necessary measures according to the system of Child Care Leave or to measures including shortening of working hours pursuant to the provision of Article 24 paragraph (1) of the Act:

A worker shall have a choice of whether or not he or she is subject to said measures.

11　Matters in taking necessary measures according to the system of Family Care Leave or to measures prescribed in Article 23 paragraph (2) of the Act by giving consideration for the period, the frequency, etc. for said care pursuant to provision of Article 24 paragraph (2) of the Act:

(1)　A worker shall have the choice of whether or not he or she is subject to said measures; and

(2)　Employers shall consider that it is desirable to take into consideration keeping a balance with a company’s burden entailed by the employment management, etc. and then to take necessary measures while paying attention to the following items:

(i)　In some cases, a period between the onset of an in need of care condition and stabilization of said 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 services pertaining to taking care a family member may exceed the period of days obtained by subtracting from 93 days the number of days for Family Care Leave, etc. set forth in Article 11 paragraph (2) item (ii) of the Act;

(ii)　In some cases, a subject family member involved in the Family Care Leave taken by said worker or in the measures taken by the employer with regard to said worker as provided for in Article 23 paragraph (2) of the Act may return to a condition requiring care by said worker after the number of days for Family Care Leave, etc. referred to Article 11 paragraph (2) item (ii) of the Act reached 93 days;

(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)　In some cases, even a worker who takes care of a family member who is not in Care-requiring Condition may have difficulty in working as a result of taking care of said family member; and

(v)　In some cases where the system can be utilized flexibly since there are a variety of degrees of necessity for said workers to take care of a Family Member.

12　Pursuant to the provision of Article 26 of the Act, in making a change to assignment of an employed worker which results in a change in the said worker’s workplace, matters in giving consideration for the worker’s situation with regard to child care or family care: