Childcare Leave and Family Care Leave Law Amended - International Law Office

Introduction
Contract Employees
Childcare Leave
Family Care Leave
Child Nursing Care Leave
Other Amendments

Introduction

Amendments to the Childcare Leave and Family Care Leave Law became effective on April 1 2005. The purpose of the law is to promote the welfare of workers taking care of children or other family members and to contribute to the development of the economy and society.

The number of female employees and two-income families has increased recently, resulting in a rising need for support of childcare and family care. Therefore, the law was reviewed and amended in order to support childcare and family care by employees more effectively. The main features of these amendments are as follows:

• Contract employees may take leave under certain circumstances;
  
  
• The period during which an employee can take childcare leave has been extended in certain circumstances from when a covered child reaches 12 months of age to when the child reaches 18 months of age;
  
  
• One family member is allowed several periods of family care leave under certain circumstances; and
  
  
• Child nursing care leave was introduced.

Contract Employees

Before the amendments, an employee hired under a fixed-term employment contract was not entitled to take childcare and family care leave. Under the amended law, a contract employee meeting each of the following requirements is entitled to childcare and family care leave:

• The employee has been working for the company for at least one year;
  
  
• His or her employment is expected to continue after the child reaches one year of age, or the employment is expected to continue after a period of 93 days beginning on the day after the date on which family care leave would begin; and
  
  
• It is unclear whether employment will expire within one year of the child's first birthday (or whether employment will be renewed), or it is unclear whether employment will expire within one year after the 93-day period (or whether employment will be renewed), as applicable.

Childcare Leave

Before the amendments, an employee could take childcare leave only during the period before the child's first birthday. Following the amendments, employees may take childcare leave after the child's first birthday up to the date when the child reaches 18 months of age under either of the following circumstances: (i) the employee wishes to place the child in a nursery but cannot do so; or (ii) the employee's spouse was supposed to care for the child after his or her first birthday but cannot do so due to circumstances such as death, injury or sickness.

Family Care Leave

Previously, employees could take family care leave only once per family member. Under the amended law, employees may take family care leave for each circumstance requiring family care for each eligible family member.

Children Nursing Care Leave

The amended law has introduced a nursing care leave so that employees can take leave to care for sick children. Employees raising a child may take nursing care leave for up to five days annually (until the child reaches elementary school age). Employers must provide this leave at the employee's request in addition to any amounts of annual paid leave. However, child nursing care leave can be treated as unpaid leave.

Other Amendments

Another notable amendment is that employers are now required to implement one of the schemes designated by law to take care of children under the age of three. These schemes are as follows:

• a scheme to reduce regular working hours;
  
  
• a 'flexi-time' scheme;
  
  
• a sliding scheme before or after regular working hours;
  
  
• a scheme to avoid overtime work; and
  
  
• any other appropriate scheme (eg, establishing a nursery within a company).

Employers are required to choose which scheme they wish to adopt and clarify this choice in the company work rules or other written company documents.

Further, the law requires that companies take into account the following elements when relocating employees:

• their family status;
  
  
• their need to care for family and children;
  
  
• their desires and intentions; and
  
  
• the availability of alternative measures.

Employers must also take into consideration employees' need to care for family or children by themselves. Therefore, relocation of employees caring for family or children should be implemented only after careful consideration of various factors and alternatives. An order of relocation made without careful consideration would likely be considered void.

The entitlement to childcare leave and family care leave set forth by the law represents the minimum and mandatory standards. This entitlement cannot be reduced or restricted by employers. Any employers that have not taken measures to implement these amendment (eg, by amending the company work rules) should take action as quickly as possible to avoid potential liability.

For further information on this topic please contact Yasuhiro Fujii at Tokyo Aoyama Aoki Law Office/Baker & McKenzie by telephone (+81 3 5157 2700) or by fax (+81 3 5157 2900) or by email (yasuhiro.fujii@bakernet.com).