The Corona Pandemic As Opportunity To Consider Telework As A RightFri, Oct 30, 2020
The Corona Pandemic As Opportunity To Consider Telework As A Right
Professor Masatoshi Ooki,
Waseda University School of Law
The novel coronavirus pandemic created an opportunity for telework to spread in Japan. It seems that the era of telework has arrived, and it will probably continue to some extent, mainly in larger corporations. However, there are many workers who hope for telework but are left behind by the wave. They are facing unemployment, loss of income because of work restrictions and other problems. The key to solving these problems seems to lie in legislating a right to telework, as in Europe. This column will examine the right to telework through the example in my specialty of Italian legislation.
Workers who need telework
According to Persol Research & Consulting’s study of pandemic restrictions and telework (2020), conducted in April during the emergency declaration, 47% of workers not doing telework wished to, showing that there were many workers who wanted to work remotely but could not.
Regarding single mothers, there are studies suggesting that a large proportion chose to take time off or quit work in order to prevent spreading the infection to their cohabitating family members, and others were forced to take time off or reduce their work hours because of elementary and middle school closures. Because a large proportion of service sector work is difficult to perform remotely, we can surmise that inability to work imposed a heavy toll on single mothers.
Telework plays an important role in the coronavirus pandemic, as it prevents spread of infectious disease and, while imposing some burdens on private life, it allows people to continue their work. However, the question remains to what extent those who need it are able to take advantage of it.
Italy recognized the right to telework in the pandemic
Italy has revised its regulations to encourage telework in response to the coronavirus pandemic. Among the new policies, the most important for this column are the ones which created a right to “smart work” (ie, workers choose where and when they work) for (1) the disabled and households including the disabled; and (2) working parents who support children younger than 15.
Specifically, emergency decree 18 was issued on March 17, 2020. First, the decree gave the right of smart work, albeit for a limited period, to persons with a certain level of disability and those with such a person in the household, provided that smart working is compatible with the nature of their assigned work (article 39, section 1). Second, the decree stipulates that employers, when allocating smart work, give priority to workers whose capacity is reduced by disease (article 39, section 2).
Further, emergency decree 34 was issued on May 19, 2020. Though also for a limited period, it gives the right to smart work to workers supporting children under 14 for the duration of the state of emergency, if there is not a parent in the home, either a non-worker or one receiving furlough or unemployment income support benefits. The condition that the compensated labor be performed satisfactorily also applies (article 90).
These actions can be understood as considerations for workers whose private lives are negatively affected by measures to prevent spread of the novel coronavirus, allowing work to continue even when it cannot be performed at the normal workplace.
Spread of the right to telework in Europe
Italy is not the first in Europe to come up with the idea of a right to telework. For example, a 2019 EU law (Work-Life Balance Directive) mandated member states to provide the right to flexible work arrangements (including remote work)  for workers with children under a certain age or caring for others. 
The Netherlands and Finland, already before the pandemic, passed laws allowing workers to demand of employers or decide for themselves when and where they work. They cover a wider range of workers, not only those needing special consideration such as in Italy and the EU directive. These laws are based on the principle that workers take primary initiative in balancing work and private life, and that, as a result, they should be able to decide for themselves when and where they work. 
In Europe, the right to telework is being framed in the context of accommodation for workers who have heavy burdens in their private life, and in the context of workers taking primary initiative in achieving work-life balance.
Japan also needs a dialogue on the right to telework
In Japan, there is yet no movement toward legislation to clearly recognize a right to telework, and hardly any discussion of such a right in the academic circle of labor law. The Child Care and Family Care Leave Act calls on employers to provide various accommodations for workers who care for children and others. In that sense, a context of consideration for workers with heavily burdened private lives, like that shown in the European examples, already exists. A dialogue over a right to telework can surely be begun as an extension of that context. Further, article 3, section 3, of the Labor Contract Act states, “workers and employers should execute and modify labor contracts with consideration of harmony between work and private life,” establishing an even more fundamental principle, and this can easily serve as a basis for workers taking initiative in achieving work-life balance. Going forward, Japan needs a discussion of a right to telework based on this foundation.
- Study of the dire impact of novel coronavirus on 1800 single-mother households, by NPO Single Mothers Forum (August 28, 2020)
- Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU’ (2019) Official Journal L 188 p. 79.
- hamachan blog (record of EU labor law creation miscellany)
http://eulabourlaw.cocolog-nifty.com/blog/2020/06/post-0ce312.html (accessed September 15, 2020)
- There are also media reports of movement on legislation in Germany under the covid-19 pandemic.
See Rodosha no zaitakukinmuken kousou–shingatacoronauirusu wo keiki ni [Concept of worker’s ‘right to work from home’–opportunity of the novel coronavirus], by the Japan Institute for Labour Policy and Training
https://www.jil.go.jp/foreign/jihou/2020/05/germany_02.html (accessed September 15, 2020)
Masatoshi Ooki received a bachelor’s degree from Waseda University School of Law in 2003, a master’s in 2006, and a doctorate in 2014. He served as research associate at Waseda, lecturer and associate professor at Himeji Dokkyo University, then associate professor of law at Waseda and now full professor.
His major published works include Itaria ni okeru kintotaigugensoku no seisei to tenkai [Genesis and development of the principle of equal treatment in Italy] (Nippon Hyoron Sha, 2016), winner of the 2016 Okinaga award. His specialty is labor law.