Vol.33-No.10 October 1,1994
In Japan, more and more women have come into the work force since the beginning of the period of post-war economic development. However, the female labor force participation rate by age group forms a pattern called the "M-curb" as many women leave when they have their first child (or, in some cases, when they get married) and resume working after their children are old enough to go to school. More often than not, they find it difficult to continue working while taking care of their little children.
Although the sense of equality between men and women has become strong, mothers still often assume the main responsibility for child raising. On the other hand, it is difficult to continue to work while fully carrying out such responsibilities. Thus, women who want to continue to work full time tend to avoid bearing children. This may be one of the reasons for the recent decline in the fertility rate in Japan, which dropped to 1.46 in 1993.
Moreover, even when their children grow up and women who once retired return to the labor market, the necessity caring for frail elderly parents becomes another serious problem. This is especially true in this aging society. As a result, many working women feel that caring for children and elderly family members are among the most important factors that deter them from continuing to work(See Table 1) .
Thus, leave for child and elder care has become an important issue in the labor law and its administration in today's Japan. In response, the Child Care Leave Law was enacted in 1992. As for elder care leave, the Ministry of Labour issued a guideline in the same year in order to encourage employers to provide the leave system. Furthermore, the Ministry is now considering some kind of legislation on this subject. Meanwhile, the Basic Survey on Employment and Management of Female Workers, an annual survey conducted by the Ministry of Labour, focused in 1993 on child and elder care leave systems in private enterprises.
From this background, this article describes the recent development of child and elder care leave in Japan. Section II outlines the basic contents of the Child Care Leave Law and the guideline for elder care leave as the legal or administrative framework for these leaves. Then, Section III summarizes the results of the 1993 Basic Survey on Employment Management of Female Workers, including their utilization in private enterprises. Lastly, Section IV considers future prospects for these leaves, pointing out some problems to be resolved.
II. Framework of the Child and Elder Care Leave System in Japan
1. The Child Care Leave Law
Essentially, the Child Care Leave Law provides a worker upon request the right to leave in order to care for his/her child (including an adopted child) who is less than one year old. All workers, male or female, are entitled to take one leave of absence in order to care for each child, except for workers employed on a daily basis or for a fixed period of time. Workers who are eligible for this leave can set the period although it must end when the child reaches one year old or when it is no longer necessary to take leave for such reasons as the demise of the child.
Although an employer can not generally reject a worker's request for such a leave, they can do so under certain circumstances. For example, an employer can reject a worker's request if he/she has been employed for less than one year by the employer to whom the leave is requested. This is also the case when the spouse of the worker who is a parent of the child can take care of the child, i.e., when he/she is living with the child, and is neither employed, disabled, nor shortly before or after childbirth. To exercise these exceptions, an employer must conclude an agreement to that effect with a union that organizes the majority of workers at the enterprise or, if there is no such a union, with an employee who represents the majority.
The Law does not guarantee the payment of wages while workers are taking child care leave. However, a recent amendment to the Employment Insurance Law, which passed the Diet in June 1994, enables workers on leave to receive a "child care leave allowance." The Employment Insurance Law set up, among other things, an unemployment insurance system run by the national government, and the child care leave allowance is modeled after unemployment allowance under the Law. Workers who are covered by this insurance system are entitled to the child care leave allowance while they are on child care leave. The total amount of this allowance is 25% of their regular monthly wages earned before taking leave, although 5% of this allowance is paid six months after they resume their employment covered by the Employment Insurance Law.
In order to protect the workers' right to child care leave, the Law makes it unlawful for an employer to discharge workers for taking child care leave. Also, in addition to the right to leave, the Law requires an employer to take certain measures to facilitate child care upon the request of a worker who has a child under one year old but does not want to take the leave. These measures include shorter working hours, flextime, no overtime work, or accommodation such as a child care center.
It should be noted that this child care leave is different from maternity leave (pregnancy leave). The Labour Standards Law provides female workers the right to take maternity leave of six weeks before childbirth and eight weeks thereafter. Therefore, female workers can take child care leave after the completion of maternity leave. In addition to the Child Care Leave Law itself, the government has issued a guideline to encourage employers to implement child care leave system. Also, as for national and local public workers, there are separate statutes called the Child Care Leave Law for National Public Servants and the Child Care Leave Law for Local Public Servants.
2. The Guideline for Elder Care Leave System
Unlike child care leave, the right to take elder care leave is not guaranteed under law at present. Recognizing its importance in this aging society, however, the Ministry of Labour set up a commission and asked advice on the content of an elder care leave system. Based upon the proposal of this commission, the Ministry of Labour issued a guideline for elder care leave in July 1992. This guideline is a model providing minimum standards for elder care leave and other measures to facilitate the ability of workers to provide care for elderly and other relatives. Although this is not a mandatory requirement like the Child Care Leave Law, the Ministry of Labour intends to encourage employers through administrative guidance to implement elder care leave in accordance with this guideline.
The guideline first recognizes the necessity of elder care leave, and recommends that both male and female workers are entitled to such leave except for certain categories of workers such as those who are employed on a daily basis or for a fixed period of time. Elder care leave should be granted when the worker's spouse, his/her or the spouse's parents, or their children have difficulty in leading daily life because of physical or mental disabilities. According to the guideline, leave policy should not require workers requesting leave to show that there is no other person than him/herself who could provide care for such family members, since it is difficult to determine whether a worker actually meets such a requirement. Nor does the guideline recommend the requirement as a condition to take leave that the worker ordinarily takes care of or supports such family members.
The guideline also recommends that the period of leave should be at least 3 months and that one leave should be granted at least once for each family member who is in need of medical care. Matters regarding wages and other benefits during elder care leave, positions to assign workers returning from leave etc. are left to negotiation between parties to employment contracts or collective bargaining agreements, but the employer should not put employees in such a disadvantage as would negate the raison d' IeItre for elder care leave. Like the Child Care Leave Law, the guideline also suggests that the employer take measures to facilitate elder care such as shorter working hours and flextime.
III. The Reality of Child and Elder Care Leave Systems
The Ministry of Labour has annually conducted its Basic Survey on Employment Management of Female Workers. In 1993, the Survey focused on child and elder care leave systems in major industries. The Ministry sent questionnaires to about 8,000 private enterprises that employ 30 or more regular workers, and 6,219 (77.7%) of them replied. The following are the principal results.
1. Child Care Leave
The survey revealed that 50.8% of the enterprises have provisions for child care leave in work rules, collective bargaining agreements etc. In the case of large enterprises, the ratio is much higher: 95.2% of enterprises that employ 500 or more regular workers have provisions for child care leave. On the other hand, only 45.1% of the enterprises that employ 30 to 99 workers have such provisions (See Table 2). It is to be noted, however, that since providing child care leave is a mandatory requirement under the law, the absence of such provision does not mean that workers can not take child care leave. According to the survey, 48.1% of female workers who had a child between April 1, 1992 and March 31, 1993 took child care leave, as compared to only 0.02% of male workers whose wives had a child during this period.
Of the responding enterprises, 91.3% set a limitation on the period of child care leave stipulating that it shall end when the child becomes one year old, which is the minimum standard of the Child Care Leave Law. In reality, however, 58.7% of female workers took leave for less than six months(See Table 3). As for payment of wages and other benefits, 32.3% of enterprises, by themselves (25.6%) or together with employees' association (2.5%), pay some money to workers on child care leave. Of these enterprises, 60.6% pay monthly, and 76.3% of such enterprises offer an amount equivalent to the social insurance premium workers would have paid if they did not take child care leave. In addition, 86.7% of the enterprises makes it a rule to reinstate workers to their original positions when they return to work. In fact, 84.6% of female workers (100% in the case of male workers) returned to work.
The survey also revealed that 41.3% of the enterprises have one or more measures to facilitate child care. These are: shorter working hours (63.1%), flextime (15.0%), late reporting time (23.5%), no overtime work (48.4%), and in-house child care centers (4.6%). Of female workers who work at such enterprises and who had a child between April 1, 1992 and March 31, 1993, 21.0% made use of these measures.
2. Elder Care Leave
Employers are gradually, although more slowly than for child care leave, implementing elder care leave benefits in their employment management. The Survey found that 16.3% of the enterprises provide elder care leaves. Like child care leave, employees in large enterprises fare better: 51.9% of the enterprises that employ 500 or more workers provide elder care leave(See Table 4). Between April 1, 1990 and March 31, 1993, 14.85% of the enterprises that have elder care leave reported that one (60.6%) or more of their employees actually took the leave. Apparently, male workers are more willing to take elder care leave than child care leave, since 23.15% of those who took elder care leave were men.
Of the enterprises that have elder care leave, 80.3% limit the length of this leave, and one year per one leave is the majority (56.4%). The length of chld care leave that workers actually took was shorter than that in the case of child care leave. Forty-six point seven percent were less than 3 months (See Table 5). At 85.7% of such enterprises, workers are required to meet certain eligibility criteria in order to take elder care leave. These criteria stipulate the relationship between the employee and persons in need of care. However, even when eligibility criteria are stipulated, it is possible for workers to take leave in order to care for spouses (97.1%), parents (95.5%), children (91.0%), and spouses' parents (81.5%). On the other hand, about half of the enterprises make it a condition of leave that no one but the worker requesting leave is able to take care of these persons (53.5%), or that the worker ordinarily lives with them (48.2%).
Only 7.5% of the enterprises have some measures to facilitate elder care: shorter working hours (65.6%), change in reporting or leaving time (23.2%), "care time," i.e., a certain unit of time for medical care that workers can utilize on request (21.2%), and flextime (14.5%).
As the Basic Survey on the Employment Management of Female Workers indicates, child care leave has been spreading since enactment of the Child Care Leave Law. However, small size enterprises have been relatively slow in implementing child care leave provisions in their work rules. In addition, it remains to be seen to what extent the amendment of the Employment Insurance Law that provides for insurance benefits during child care leave will encourage more workers to take the leave.
On the other hand, although many large companies are gradually implementing elder care leave, it is not so prevalent as child care leave, and much less so in small scale companies. As stated in the beginning, the Ministry of Labour is considering elder care leave legislation. A recent report by an expert committee on elder care leave established by the Ministry of Labour examines several questions regarding the contents of elder care leave. The report states that persons for whom workers can take elder care leave should at least include spouses, parents and children, as well as spouses' parents. The report also advises that the period of leave should be at least three months. Furthermore, it is to be noted that the Diet passed a new law in June 1994 that provides national public workers the right to take elder care leave.
Finally, it must be noted that care of children and elderly people are not only problems for their family members. Social support for such people, arranging from child care centers to home helpers, is equally important. The government is expected to take various measures to develop these social supports, including encouragement of volunteers as well as support for private organizations or enterprises that provide child and elder care. As one approach to providing sufficient elder care service, the Ministry of Health and Welfare has begun to prepare legislation for public medical care insurance system. Although the Ministry is planning to put this system into effect in 1997, it is necessary to discuss such details as the contents of insurance benefits and financial resources in order to insure effective use of this new system.
1 See Kazuko Tanaka, Changing Marriage and Family Structure: Women's Perspective, 31 JAPAN LABOR BULLETIN no.1 (1992).
2 The necessity to take leave for medical care is not limited to elder family members such as workers' parents. Their spouses and children may also become disabled and need medical care. The term "elder care" is, therefore, used only as a matter of convenience.
3 For the legislative background of the Child Care Leave Law, see Michio Nitta, Child Care Leave Law and Its Background, 30 JAPAN LABOR BULLETIN no.9 (1991).
4 Under the Labor Standards Law, the period of employment contract shall not exceed one year except for certain special circumstances.
5 The Child Care Leave Law provides a grace period for employers that employ less than 30 workers until March 31, 1995.
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