Most Japanese employers offer a leave of absence for illness or injury not caused by work, known as kyushoku. It is not required by law, so the length, pay and rules are set in the work rules. Typically the employee first uses paid leave and sick days, then moves onto unpaid leave, during which health insurance pays an injury and sickness allowance. Many work rules provide that if the employee cannot return by the end of the leave period, employment ends automatically as a retirement rather than a dismissal.
That makes the return decision the point of dispute. The employee's own doctor usually certifies fitness, but the employer can ask the company's occupational physician for an opinion and can require a medical examination under the work rules. The Ministry of Health, Labour and Welfare's guide on returning to work after mental health leave, first published in 2004 and revised since, sets out a five-step process: care during leave, a fitness judgement, a return plan, the return decision and follow-up. Many employers use trial attendance or reduced hours at the start.
Courts have set a demanding standard for employers. In the Katayama-gumi case of 1998, the Supreme Court held that where a contract does not limit the employee to a specific job, an employee who cannot do their old work but can do other work the employer could realistically assign is offering proper performance. Treating such an employee as unfit, and letting the leave expire, risks a finding that the termination was invalid.
Return from childcare leave is governed separately: the employee must not be disadvantaged for having taken the leave.
What it means for a foreign employer
- Write the leave rules in Japan. A global sick leave policy rarely covers the length of leave, pay, the automatic end and the fitness process. Put them in the work rules.
- Use the occupational physician. The company doctor's opinion is your best evidence on fitness. Bring them in early, not at the end of the leave.
- Look beyond the old role. Before ending employment, ask what other work the person could do. In a small Japan office, document why no realistic alternative exists.
- Plan the return, not just the date. Graduated hours and a clear contact person reduce relapse, which is common after mental health leave.
Sources
- Supreme Court, Katayama-gumi case, 9 April 1998.
- Ministry of Health, Labour and Welfare, Guide to Supporting the Return to Work of Workers on Leave for Mental Health Problems (2004, revised 2009 and later).
- Childcare and Caregiver Leave Act, Article 10.