Childcare Leave Law -Japan’s overly complicated system-

Here is a general overview of the Childcare Leave Law in Japan.
You can easily find just a simple English summary of childcare leave in Japan, but there should be little or no information in English that covers the matters set forth in the Childcare Leave Law.

Please be aware your Japanese subsidiaries or affiliates have to follow this complicated Childcare Leave Law.
In addition, the labor bureaus of prefectures throughout Japan are keeping a close eye on violations of the Childcare Leave Law by companies. It is also said that labor disputes related to the Childcare Leave Law often result in favorable outcomes for workers, both in court and in administrative actions.

Note: PMP provides timely information on Japanese labor laws and labor court cases. We also advise companies on how to troubleshoot various personnel issues.

In addition to Maternity leave (6 weeks before the due date and 8 weeks from the birth of the baby), Japan has Childcare Leave. Maternity leave is universally statutory, while Childcare Leave is also a statutory right, there are a few cases where an individual would not be eligible. Both maternity leave and Childcare Leave are unpaid leaves, but there are allowances paid through social insurance to the mother in the case of maternity leave and parents in the case of Childcare Leave.

The following is a detailed explanation of Childcare Leave, which also includes a lot of administrative responsibilities which are borne by the employer.

The Childcare Leave Law obliges companies to introduce and apply various systems and measures for childcare. Prior to the enactment of the Childcare Leave Law, the burden of child care has been overwhelmingly borne by women in Japanese society, and a system led by the law that helps both men and women to balance work and child care was important as it should in turn reduce the number of women workers who are forced to leave the workforce and encourages them to play an active role in their company.
In this regard, the Childcare Leave Law obliges companies to introduce and apply various systems and measures for childcare. In addition to the Childcare Leave Law, there is also a law for Family Care leave that while is mainly to provide for leave to care for elderly parents it also includes children and hence overlaps with childcare law in the case of illness or disability.
Since the enactment of the Childcare Leave Law, systems and measures for child care have repeatedly been expanded by numerous amendments to the law.
In addition, the Childcare Leave Law prohibits disadvantageous treatment of employees who take such leave, and companies are obliged to take employment management measures against harassment related to the use of childcare leave and its related systems and measures, in the same way as for sexual harassment and maternity harassment. Harassment related to the use of childcare leave, and other systems and measures is subject to the same employment management measures as sexual harassment and maternity harassment.

Childcare leave does not only include actual leave, but directly related to being able to care for one’s children, but also requires companies to provide system to enable parents to care for their children. These measures include:
– Reduced(shortened) working hours;
– Exemptions on working outside standard office hours;
– Limitations on overtime
– Limitations on late night work(10pm-5am)
– Infant Illness Leave

Definition of Leave of Absence

In principle, Childcare leave taken by a worker to take care of their child who is under one year of age.
Workers include employees, temporary staff, and contractors.
The initial leave is until the child’s first birthday, but as will follow the ability to extend the leave up until the child’s second birthday is available in specific circumstances.

Workers entitled to Childcare Leave

1. All Workers (excluding daily employees) living with a child under the age of one (1) who will return to work after the leave.
2. Workers with fixed-term contracts who can be exempt from eligibility must meet the following requirements at the time of request.
   – The term of the labor contract must expire by the day the child turns one year and six months old (or two years old in the case of leave up to two years old), and it must not be clear that the contract will not be renewed.
3. Workers who can be excluded from eligibility with a labor-management agreement are as follows:
   – Workers who have been employed for less than one year
   – Workers whose employment will be terminated within one year (six months in the case of leave after the age of one)
   – Workers whose prescribed working days per week are 2 days or less

Number of times of childcare leave

In principle, a worker can take childcare leave once per child (except when childcare leave taken within 8 weeks of the child’s birth, which typically is the father, as the mother is entitled to maternity leave, or either parent in the case of adoption or fostering).

Exceptions;

–  When childcare leave ends due to the start of a new maternity leave, childcare leave (is another child’s leave starts), or the awful situation where the child related to the leave dies.
– In the event of the death of the “other” parent, or in the event it becomes difficult the parent who was on leave to care for the child due to injury, illness, or disability.
– In the event that the spouse no longer lives with the child due to divorce.
– When a child requires care for two weeks or more due to injury, illness, or disability. (Note: This is family care leave)

Duration (if extended)

The Leave in principle starts as a continuous period until the child reaches one year of age.
However, if the other parent is also taking childcare leave, the worker may take childcare leave until the child reaches 1 year and 2 months of age, ensuring a full year of leave.

On the day the child reaches one year of age (childcare leave is available until the child reaches one year and two months of age),if either parent is on childcare leave on the day the child reaches one year of age (or on the scheduled end date of childcare leave if the child is over one year of age when childcare leave is available until the child reaches one year and two months of age), and the following circumstances exist, the child can take leave until the child reaches one year and six months of age.
– If the parent wishes to enroll the child in a nursery school, but is unable to do so*1.
– If the spouse (other parent) who is taking care of the child and was planning to take care of the child after the child turns one year old becomes unable to do so due to death, injury, illness, or the like.
Extension from 1 year and 6 months to 2 years is possible under the same conditions.

*1 This is a very real issue in many parts of Japan, where enrolling children in nursery school/childcare is extremely difficult. Application periods are fixed, entry while not restricted is often only available at the beginning of the school year (April 1) and there is little notice on acceptance or otherwise.

Procedures under the law

The employer must provide the certified documents. These documents must be submitted to various offices, to exempt the worker and the company from social security obligations, that remain typically when on a leave of absence, and also to allow the worker to apply for the subsidy.
– The employer may request the submission of certification documents to verify the needs to take child care leave.
The employer will notify the worker in writing of the scheduled start and end dates of the childcare leave.

Limit for the application of childcare leave

Up to one month prior to the start of childcare leave is when the worker needs to apply for the leave.
(However, if the child is born before the expected date of childbirth or for other reasons, up to one week before)
Up to two weeks prior to request for leave after the child becomes one year of age

Early start of leave

Initial planning is all done around the due date of the baby, as defined by the overseeing medical practitioner, however actual start dates move due to the actual birth date. In the event of the birth of a child before the expected date or for other reasons, the expected start date may be brought forward, but only once.

Delayed start /end of leave

As with early starts, the start of the leave may also be delayed due to a change in the said child’s birth date and other circumstances.  In addition, if a request is made at least one month in advance, the scheduled end date may be moved forward one time only prior to the child reaching one year of age.
If the worker is on leave after the age of one, the scheduled end date may be moved forward one time only until the child reaches one year and six months (or two years) of age by filing a request by the day two weeks prior to the newly requested end date.

There is no legal requirement to accept a request to advance the scheduled end date. However please do be aware that doing so may result in the said child losing a place in childcare, if early acceptance to the childcare is the reason for returning early. At the same time the companies may have temporary workers to replace the labor during the leave period, the companies must also comply with those employment contracts.

Withdrawal of leave

Withdrawal is possible if the request is made at least one day before the scheduled start date of the leave.
In principle in the case of withdrawal, it is not possible to request again until after the child turns one, and then between one and one and six months a request can be made.

Infant Illness Leave

Workers who take care of children who are not of the age of entering elementary school, may take up to 5 days of leave per year (up to 10 days in the case of two or more children) to care for sick or injured children or to have children receive vaccinations or medical examinations.
Leave can be taken in daily units, half-day units (one-half of the prescribed working hours) and from January 1, 2021, the leave may be taken in hourly increments, although not in the middle of the day, but at the start or the end of the working day.

Workers entitled to Infant Illness Leave

Workers who take care of children up to the first day of elementary school (excluding daily employees)
Workers who can be exempted by labor-management agreement
– Workers who have been with the company for less than six months
Workers who work less than two days per week
Workers engaged in work for which it is considered difficult to take infant illness leave in hourly units (these workers may take leave in one-day units)

Limitations on overtime work

As was stated above Childcare Leave is not only actual leave but also includes systems for those who do not take their full leave entitlement in addition to those who may have returned to work but with a child under the age of three.
In the event a worker who takes care of a child under three years of age requests so, the employer shall not allow the worker to work beyond the prescribed working hours.

Workers entitled to limitations on overtime:

Workers who take care of a child under 3 years old (excluding daily employees)
Exceptions to the workers above:
Workers who can be exempted by labor-management agreement
– Workers who have been with the company for less than one year
– Workers who work less than two days per week
There is no limit to the number of times a request can be made.
Request must be made at least one month prior to the start date of the limitation.
The employer may refuse the request if it interferes with the normal operation of the business. If challenged the onus is on the Company to prove that limiting overtime interfere with normal business operations.

Limitation on legal overtime work

In the event a worker who is taking care of a child who has not yet entered the first grade of elementary school makes a request in order to take care of their child, the employer shall not require overtime beyond the legal limit (24 hours per month, 150 hours per year).

Workers entitled to legal overtime limit.

Workers who take care of children until they enter first grade of elementary school
Exceptions to the workers above are;
– Workers who are hired on a daily basis;
– Workers who have been with the company for less than one year;
– Workers who work less than two days per week.

There is no limit to the number of times a request can be made.
・Requests must be made at least one month prior to the start date.
The employer may refuse the request if it interferes with the normal operation of the business. If challenged the onus is on the Company to prove that limiting overtime interfere with normal business operations.

Limitations for late night work

In the event a worker who is taking care of a child who has not yet entered elementary school makes a request to take care of the child, the employer shall not allow the worker to work between 10pm and 5am.

Workers entitled to limitation on late night work:

Workers who take care of a child who has not yet entered the first grade of elementary school
However, workers who fall under the following categories are not entitled to the exemption:
– Workers hired on a daily basis;
– Workers who have been with the company for less than one year
– Workers who have a family member living with them who can take care of the child
– Workers whose prescribed working hours are all late at night
A family member living in the same household who can provide childcare means a person who is 16 years of age or older and falls under all of the following categories
(a) Not working late at night (including those who work three or fewer days late at night per month)
(b) It is not difficult to take care of the child due to injury, illness, or physical or mental disability.
(c) The family member is not due to give birth within 6 weeks (14 weeks in the case of multiple pregnancies) or 8 weeks after childbirth.

There is no limit to the number of times a claim can be made.
・Requests must be made at least one month prior to the start date.
The employer may refuse the request if it interferes with the normal operation of the business. If challenged the onus is on the Company to prove that limiting overtime interfere with normal business operations.

Shortened Work Hours:

With regards to workers (excluding daily employees) who take care of children under 3 years of age and who are not taking childcare leave (excluding workers whose prescribed daily working hours are 6 hours or less), the prescribed daily working hours shall be reduced to six hours in principle.
However, this does not apply to the following workers who are specified in the labor-management agreement as not being subject to measures to shorten the prescribed working hours
– Workers who have been with the company for less than one year
– Workers with a prescribed work week of two days or less
– Workers engaged in work for which it is deemed difficult to take measures to shorten the prescribed working hours due to the nature of the work or the work implementation system.

In the event measures to shorten the prescribed working hours are not taken for workers in the above three categories, the employer shall be obliged to take one of the following measures for such workers
– Measures equivalent to the system for childcare leave
– Flextime system
– Earlier or later start/end times of work
– Establishment and operation of in-company childcare facilities and provision of other similar benefits

Obligations:

Companies are asked to make efforts to take necessary measures for workers who take care of children until they reach the first grade of elementary school, that are similar to measures such as systems related to childcare leave, including systems related to restrictions on overtime work, measures to shorten prescribed working hours, or flextime systems.
Companies are also being asked to make efforts for workers who take care of children until they reach the first grade of elementary school, the obligation to make efforts to establish a leave system that can be used for childcare purposes, such as spousal maternity leave.

Others:

Employers shall be obligated to establish a system necessary to respond to consultation from workers and take other necessary measures for employment management so that the working environment of workers will not be harmed by their words or actions concerning the offer or use of childcare leave, family care leave, or other systems or measures related to the upbringing of children or the care of family members.
In the case of a change of assignment involving a change in the place of work, if there are workers who will find it difficult to take care of their children or family members while working due to the change in the place of work, the obligation to consider to the circumstances of taking care of their children or family members is required.
Prohibition of dismissal or other disadvantageous treatment on the grounds of requesting or taking childcare leave, family care leave, infant illness leave, family nursing leave, limitations on overtime work, limitations on legal overtime work, limitations on late-night work and measures to shorten prescribed working hours.
Employers are obliged to make efforts to stipulate the following matters in advance in their employment regulations, and make them known to employees.
Matters concerning treatment during childcare leave and family care leave. This is the creation of the Childcare and Family Care Leave Regulations.
Matters concerning wages, assignments and other working conditions after childcare leave and family care leave
In the event an employer learns that a worker or spouse has become pregnant or given birth, or that a worker is taking care of a family member, the employer is obligated to make efforts to individually inform the worker of the relevant systems they can utilize. As such the Childcare Leave system must be considered in conjunction with both Maternity Leave and Family Care Leave, and due to the changes in the end dates and extension possibilities planning for employees eligible and utilizing these systems is extremely challenging. In all cases, positions must be available for them when they return to work, and when they are on leave their responsibilities need to be reassigned.