JILPT Research Report No.232
Comparative Law and Policy on Emerging Infectious Diseases: Occupational Health Protection in Japan and Germany during COVID-19 Pandemic

March 26, 2025

Summary

Research Objective

This report examines issues of legal interpretation and legislative policy concerning occupational health protection during outbreaks of emerging infectious diseases. Adopting a comparative legal approach, it examines Germany’s legal and legislative policy responses to the COVID-19 pandemic to derive implications for Japanese law.

Research Method

Literature review

Key Findings

Introduction and Chapter I

This report identifies and examines key challenges to Japanese labor law and labor policy that emerged in response to the COVID-19 pandemic. These challenges are broadly categorized into two areas: (A) employment retention and income security for employees during business downsizing and suspension of operations due to COVID-19 pandemic, and (B) the prevention of workplace infections and the protection of employees’ health. In addressing both areas, the report reviews previous studies.

In particular, with respect to the area (B), this report demonstrates—through a comparative analysis of foreign law, particularly German law—that there remains significant scope for further examination of interpretive approaches and legislative policy theories. In doing so, it establishes both its overarching purpose and structure.

Chapter I provides an overview of the legal systems of Japan and Germany concerning labor relations and public health serving as a foundation for the analysis in Chapter II and subsequent sections. It also outlines the progression of the the COVID-19 pandemic in both countries and summarizes the formation and development of legal and policy responses to address its impact.

Chapter II

Chapter II offers a comprehensive analysis of legal issues arising from labor relations in connection with workplace measures to prevent infection with emerging infectious diseases—excluding matters related to telework (i.e., working from home) and vaccination—addressing both situations in which employers actively implement such measures and those in which they refrain from doing so. The issues addressed fall broadly into four issues: (i) the implementation of infection prevention measures by employers; (ii) the identification of infected individuals (including asymptomatic carriers) in the workplace; (iii) whether employers may require employees suspected of infection to stay at home as a preventive measure; and (iv) whether employers may—or should—order employees to report to the workplace or undertake business travel during an infectious disease outbreak (pandemic). The main points of the chapter’s analysis of these four issues are summarized below.

Regarding issue (i), the first question concerns how policymakers should design measures to ensure that employers implement appropriate infection prevention protocols at each workplace. In this regard, no legislative regulation was enacted in Japan. Reviewing the fact that a considerable number of companies that failed to adopt infection-prevention measures during the COVID-19　pandemic, it may be said that the introduction of statutory regulations--requiring employers to implement such measures-- as in German law, deserves careful legislative consideration in the event of future pandemic. However, given that the risk of employees becoming infected with the virus in the workplace varies widely by industry, sector, employee size, region, and other factors, it is desirable to adopt a tailor-made (risk assessment) type of regulation, as was finally adopted in the Coronavirus Occupational Health and Safety Regulation (SARS-CoV-2-Arbeitsschutzverordnung) of Germany. Specifically, while employers would be obliged to implement infection-prevention measures, the Industrial Safety and Health Act could be amended to permit each workplace to determine appropriate measures based on the specific nature of infection risks within that workplace through consultation with employees at health committees or other representative bodies. In addition, the government should consider establishing guidelines and other possible infection prevention options that can be referenced by labor and management at each workplace when making judgments and decisions.

Regarding the issue (i), the question arises whether employers may compel employees to comply with infection prevention measures that the employers have decided to implement. Specifically, the jurisprudential discussion in Germany and Japan centered on whether employers may mandate mask-wearing as part of their lawful work orders. While the efficacy of masks in preventing droplet and aerosol transmission is generally recognized, German court decisions and legislative policy demonstrate that the validity of such mandates is not presumptively established, and must be determined by weighing its interests between the employers’ legitimate business necessity for mask requirements against the disadvantages imposed on employees.

For instance, if an employee has a developmental disability such that mask-wearing would substantially impair his or her daily functioning, and this condition is substantiated by medical documentation, a blanket mask mandate may be deemed an abuse of the employers’ right to direct and order, and could be invalidated.

The second issue (ii) concerns whether employers may compel employees to undergo COVID-19 testing (Specifically PCR tests), temperature screenings, and the use of contact verification applications such as COCOA to identify infected individuals in the workplace. The legal analysis here should begin with established precedent. Because the issues involved in compelling employees to take PCR and temperature tests are similar to those involved in ordering employees to undergo (non-statutory) medical examinations, the Japanese Supreme Court's existing analytical framework for evaluating such orders may provide relevant guidance for COVID-19 testing mandates. As recognized in German jurisprudence., PCR tests and temperature screenings constitute forms of health information collection that implicate employee privacy interests. Therefore, when evaluating the validity of employer mandates in the Japanese context, it should not be overlooked that PCR tests and temperature screenings involve the collection of employees’ health information, and that this aspect should not be considered solely from the perspective of a medical invasiveness.

Accordingly, any judicial assessment of the order’s validity must consider whether the employer properly handles the collected health information. Furthermore, with regard to the mandatory contact tracing applications (orders), it would not be permitted to order installing such applications on employees' personal smartphones, and even on company-issued devices, the validity of the above orders should be strictly judged from the perspective of the risks to privacy and personal information protection inherent in contact tracing technology.

Furthermore, regarding issue (iii)—whether employers may require employees suspected of infection to stay home as a preventive measure—the framework of Japanese conventional court decisions on the validity of an order to stay at home as a work order would provide a useful point of reference. Drawing on the discussion in German law, the validity of such an order should be assessed from two perspectives. The first is whether a business necessity exists for the employers to require the employees to remain at home, taking into account the employees’ specific symptoms and relevant behavioral history. The second is the extent of disadvantages imposed on the employees by such order, particularly in light of its duration and the feasibility of alternative arrangements, such as working from home.

Finally, regarding issue (iv)—whether employers may order employees to report to the workplace or undertake business travel during an infectious disease outbreak—Japanese Supreme Court precedent establishes that employees may be excused from such obligations where there exists an objectively reasonable expectation that workplace attendance or business travel would expose them to infectious disease, thereby endangering their health or safety. In addition, specific circumstances should be considered, informed by the German legal discussion, such as the adequacy of employer-implemented infection control measures in the workplace; the employee’s individual risk of severe illness in the event of infection; and the prevailing infection risk in the relevant geographic area, particularly for business travel assignments, when examining the issues. By contrast, an employee’s subjective or generalized fear of infection, without objective supporting circumstances, does not constitute grounds for exemption from workplace attendance or business travel obligations.

Chapter III

Chapter 3 examines specific issues arising from the COVID-19 pandemic within the broader framework of telework and working from home: it considers: (i) whether employers may require employees to work from home; (ii) whether employees may request to work from home; and (iii) whether employers may require telecommuting employees to attend the workplace. A summary of the chapter’s findings on issues (i) through (iii) is provided below.

In Japan, regarding issues (i) and (ii), if analyzed in the context of ordinary, non-pandemic circumstances—under which the Constitution guarantees inviolability of the home and the right to privacy, paralleling constitutional protections in Germany—the prevailing interpretation is that an employer does not possess the legal authority to compel an employee to work from home. Although the determination of an employee’s place of work falls within the employer’s managerial authority to issue directions and orders, it is also understood that this authority does not extend to compelling employees to work from home. Accordingly, in ordinary times, the implementation of working from home requires an individual agreement between employers and employees. Moreover, regarding the right of employees with disabilities to request working from home as a reasonable accommodation—an exception that has been discussed in relation to issue (ii) above—a comparative analysis of German law suggests that even if such a right were formally recognized, its practical application would likely remain narrowly circumscribed.

With respect to issues (i) and (ii), when considered in the context of a pandemic or other comparable state of emergency, it is conceivable—grounded in the reciprocal duties of consideration owed between employers and employees—to adopt an interpretation recognizing either a right to request or an authority to mandate telecommuting, as well as policy measures to provide those rights. Nevertheless, in light of debates and legislative policies in German law on this subject, even if such provisional rights and claims were acknowledged, they would likely require to broad exceptions to account for operational and practical constraints. Accordingly, in the pandemic context, legislative policies should focus on encouraging the parties to an employment contract to explore　telecommuting arrangements and to facilitate their implementation through individual agreements. Specifically, in circumstances where a state of emergency or similar declaration is in effect, it may be appropriate to introduce regulations—potentially within the framework of occupational health and safety law—that obligate employers and employees to engage in mutual consultation regarding the implementation of working from home.

Furthermore, regarding issue (iii), the validity of an employer's order requiring an employee who has worked from home previously to return to the workplace should be assessed through proportionality analysis, balancing the employer’s business necessity for issuing the order against the potential disadvantages the employee would face in complying with it. German Law offers a valuable interpretive framework that rest on two principal considerations. Under the approach, in the former case—namely, the validity of an employer’s order—attention is given to factors that may impede the smooth implementation of working from home, including the nature of the work, the employee's conduct in relation to their duties, and changes in the working environment. In the latter case—addressing potential disadvantages to the employees—consideration is given to factors that pose a risk to life or physical safety due to infection or severe illness associated with commuting, as well as circumstances that render work outside the home impracticable. Moreover, through comparison with German law, when evaluating the validity of the above-mentioned order to report to the workplace, it is well worth considering a perspective whether the employer complied with certain procedures, such as providing advance notice.

Chapter IV

Chapter IV examines the interpretive and legislative policy issues that may arise in workplace and labor relations with respect to vaccination against emerging infectious diseases. The analysis proceeds along two principal dimensions: (i) vaccination “promotion” and (ii) vaccination “coercion.” The following summarizes the findings of this study.

First, regarding (i), as a policy response to promote vaccination in the workplace, so-called “workplace vaccination” was conducted in Japan and Germany for the COVID-19 pandemic. In comparison with German law, the following cases deserve consideration in Japan; encouraging employers to introduce a leave system for vaccination by, for example, providing subsidies, or requiring that vaccination, as an obligation, be publicized and awareness be raised within the framework of safety and health education under the Industrial Safety and Health Act.

On the other hand, regarding issue (ii), given the degree of medical invasiveness associated with vaccination, its effects on the human body, and the potential risk of adverse reactions, the decision whether to vaccinate should be left to the individuals’ right to self-determination as protected by Article 13 of the Constitution, including that of employees. Therefore, as is the general interpretation in German law, it is construed that, at least in relation to employees in general, employers cannot oblige employees to be vaccinated as a work order (direct compulsion). On the contrary, in the event of a future pandemic comparable to, or more severe than the COVID-19, it is undeniable that, with respect to medical and nursing care employees who inevitably come into contact with vulnerable populations—older adults and patients at heightened risk of serious illness or death if infected—legislative policies like those adopted in Germany, which indirectly compel vaccination by employer mandates, may give rise to significant legal and policy issue in Japanese context.

In this case, referring to the discussion in German law, (on the latest scientific and medical knowledge available at that time), the validity and constitutionality of such orders and legislation should be considered on the basis of (a) the risk of adverse reactions, etc. that may occur when medical and nursing care employees are vaccinated, (b) the need to protect people from infection in the sense of being vulnerable described above, (c) the effectiveness of vaccination in preventing the spread of infection (especially its effectiveness in preventing infection), and (d) the other alternatives to direct or indirect compulsion to vaccinate.

Contents

JILPT Research Report No.232, full text (PDF:6.6MB) [in Japanese]

Category

COVID-19, Labor laws/working rules, Industrial relations, Working conditions/work environment, Diversified working styles

Research Period

Fiscal year 2024

Author

YAMAMOTO Yota
Senior Researcher, The Japan Institute for Labour Policy and Training

For Citation

Japan Institute for Labour Policy and Training (JILPT). 2025. Shinko kansensho to shokuba ni Okeru kenkohogo o meguru ho to seisaku: Korona-ka (COVID 19-pandemic) o sozai toshita nichi/doku hikakuho kenkyu [Comparative law and policy on emerging infectious diseases: Occupational health protection in Japan and Germany during COVID-19 pandemic]. JILPT Research Report No. 232. Tokyo: JILPT.

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