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If these two conditions are met, then the furlough would not fall under the
category of leave due to “reason attributable to the employer,” and the employer does

not need to pay a leave allowance. If the employee in question is covered by health
insurance, the employee would be entitled to sickness and injury benefits if the

requirements are met. However, the employer is nonetheless required to discuss
the situation with the employee and seek to avoid the employee suffering any
disadvantage. The employer may still be liable to pay the employee, each case being

determined based on its own facts.

In practice, this means that employers need to determine individually whether
there is a “reason attributable to the employer” under Article 26 of the Labor Standards
Law or “events attributable to creditors” as stipulated in the first paragraph of Article

536 (2) of the Civil Code.
If, after making the best efforts that should be made by reasonable employers

to avoid leave of absence, such as thoroughly considering the possibility of teleworking,
and an order to take leave of absence is still issued after such consideration, there may
be sufficient basis to argue that the order does not fall under the category of leave due

to “reason attributable to the employer” and can be regarded as “force majeure.”

If the employer decides for its own convenience to order an employee who is
able to continue his/her duties to take leave, this case would generally fall under leave
due to “reason attributable to the employer” and a leave allowance would need to be

paid. The fact that the workload has decreased sharply due to COVID-19 does not
necessarily mean a “force majeure” but rather a leave due to “reason attributable to the

employer” rule applies.

V. Dismissals Caused by the COVID-19 Crisis

Due to the impact of COVID-19, some employers may be forced to make work
force reduction in order to survive the pandemic. In Japan, there are strict laws against

work force reduction. Even under the current circumstances, the existing laws will still

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