"Special Newsflash Labor Law (Vaccination) (November 2021)"

Special Newsflash Labor Law (Vaccination) (November 2021)

Published: (Thu) 04 Nov 2021

Japan has been a slow starter in terms of COVID-19 vaccination compared to other major economies. However, as vaccination efforts have been massively increased in the second half of 2021 and companies, universities and other facilities participated in the vaccination campaign by offering vaccinations for employees, students etc. on-site, the vaccination rate has steadily increased. As of 1 November 2021, it is estimated that almost 75%1 of Japan’s population has received two vaccination doses and is deemed fully vaccinated.
As employers have usually a great desire for their employees to become vaccinated in order to prevent the spread of infections among their staff and to resume normal office operations as well as business travel, labor law questions arise what kind of options employers have in this situation and where legal limitations exist.

Q1: Can employers request their employees to be vaccinated?

No, employers in Japan cannot force their employees to be vaccinated. While the employer has a general right of instruction towards its employees, such right of instruction must be reasonably exercised in order to be enforceable. As the vaccination intrudes the physical integrity of the employee and some people may even face side effects or allergic reactions, an instruction of the employer to oblige its employees to become vaccinated is generally not deemed reasonable and not enforceable.

Q2: If an employer cannot require its employee to become vaccinated, is it possible to impose consequences on employees for not becoming vaccinated or at least provide incentives for those employees who are willing to become vaccinated?

As there is no legal requirement to become vaccinated, the employer cannot impose pressure on its employees to get the vaccine. To this end, any disciplinary action (warning letter, reprimand, salary reduction etc.) or other disadvantage, e.g. denial of promotion, would be illegal and be deemed as harassment. This said, it is in principle not prohibited to provide certain incentives to employees for being vaccinated, for example a one-time bonus payment or extra holidays. However, such incentives, if solely granted based on the vaccination status, entail the risk of claims based on unfair or discriminatory treatment within the workplace.

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