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วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

(d) Employer’s Obligations and Force Majeure Argument

In general, employers may be able to avoid the payment to the employees
in case of furlough by arguing that the furlough was due to an unforeseen “force majeure”

event. Since a new coronavirus infectious disease has been designated as an infectious
disease under the Infectious Diseases Act, the government authorities are allowed to
restrict the work of employees actually infected. If an order of a competent authority

requires a business or part of it to be closed or imposes restrictions which prevent
employees getting to their place of work and the employees cannot work from another

location, the closure or absence would not be caused by a reason attributable to the
employer (though the nature of the connection between the order and the closure or
absence would need to be examined in each case). The employer would therefore not

be required to pay the affected employees their salary for the period they can’t work
due to the closure or absence.

In a situation where many businesses, such as tourism have been severely
impacted by the recent COVID-19 infections and some businesses are on the brink of
bankruptcy, a leave of absence in that case may be interpreted as not falling under the

category of leave due to “reason attributable to the employer”. Even if an employee
who has been in contact with a person is a reasonably suspected of infection and

is ordered to suspend work, the employee’s leave does not fall under the category of
leave due to “reason attributable to the employer”. Even in such cases, however,
depending on the specific facts, the employer should consider paying at least 60% of

the employee’s average wages.

In principle, force majeure events should be excluded from the scope of “reasons
attributable to the employer” in Section 26 of the Labor Standards Act. The “force
majeure” event must satisfy the following two requirements:(i) the event resulted from

an external cause (e.g. a request of a prefectural governor issued under the state of
emergency to close the relevant business), and (ii) the accident was unavoidable even
if the employer had exercised the utmost care as a reasonable employer (and not just

based on the employer’s judgement and convenience), and after the employer had taken
all reasonable care (e.g. by implementing remote working if possible).

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