Under pressure? Japan legislates mandatory stress checks

In 2014, various amendments were made to Japan's Industrial Safety and Health Act of 1972, including a new requirement to conduct "stress checks" as a way of mitigating against work-related mental illnesses. The amendments came into effect on 1 December 2015. This article summarises the new laws on employee stress checks and what HR practitioners should know about the new requirements.

Does my organisation need to offer stress checks to employees?

Only if it employs or engages 50 or more "regular" employees, such that it would be an "Applicable Employer". In calculating the number of employees, employers should note that:

• this includes employees who are seconded to another entity but who maintain an employment relationship with the employer; and
• although "regular" employees is not defined, we recommend adopting a wide interpretation and assuming that this includes indefinite-term, fixed-term and part-time employees, and dispatch workers (i.e. labour hire workers) who are engaged even for a short period of time.

Do employees have to participate in a stress check if it is offered?

No, employees are recommended but not required to participate in stress checks.

If my organisation is an Applicable Employer, what is the deadline for conducting stress checks?

The first round of stress checks must be carried out by 30 November 2016.

Must Applicable Employers offer and provide stress checks to all employees?

No. Applicable Employers do not need to offer and provide stress checks to:

• fixed-term employees whose employment term is less than one year (and is not scheduled to be extended or renewed);
• employees whose working hours are less than three-quarters of the ordinary working hours for other employees who are in the same or similar department, or who undertake the same or similar work; and
• dispatch workers (i.e. the dispatch agency must conduct stress checks for its dispatch workers).

Applicable Employers are nevertheless encouraged to offer and provide stress checks to all employees.

What if my organisation is not an Applicable Employer?

Again, while not mandatory, all employers are encouraged to offer and provide stress checks to employees.

What if an employee at my organisation wants to participate in a stress check?

Employers should take the following six steps in conducting employee stress checks, based on the Guidelines issued by the Ministry of Health, Labour and Welfare (Ministry).^*

1. The employees must participate in a stress check

Employers must arrange for the employee to participate in a stress check. Employers have the option of implementing stress checks through:

(a) free stress check software (available for download in Japanese language at stresscheck.mhlw.go.jp);

(b) a set of sample questions issued by the Ministry. (The Ministry has published two questionnaires - a long and short version, consisting of 57 and 23 questions respectively - which are contained in the Guidelines); or

(c) another form of stress check test in accordance with the Guidelines.

2. The stress check must be conducted by a Health Practitioner

The stress check must be conducted by a "Health Practitioner" appointed by the employer, meaning a doctor, public health nurse or "applicable" nurse, or psychiatric social worker (meaning those who have attended a requisite training seminar or have three years' experience in the field of employee health and safety). In appointing a Health Practitioner:

(a) employers should ensure that the Health Practitioner and any of the employer's employees assisting the Health Practitioner are "neutral persons". For the employer's employees, "neutral persons" means anyone who is not responsible for implementing organisational restructures (so would exclude, for example, senior HR personnel); and

(b) it is recommended that the employer appoint either the employer's nominated doctor who conducts periodic health checks for its employees or a Health Practitioner who specialises in employee health and safety and workplace stress.

3. The Health Practitioner will assess the stress check results and may recommend a further interview

The Health Practitioner will assess the employee's stress check results and may recommend the employee to undertake a further interview if he or she is found to have "high stress" levels. The stress check results (including any recommendation made to employees) may only be disclosed to the employee, unless the employee consents for the Health Practitioner to share this information with his/her employer.

4. Employees who wish to participate in an interview must make a request to their employer

Employees who wish to participate in an interview must ask their employer to arrange the interview. The interview must be conducted at the employer's costs and by a doctor in person, or via video conference in some circumstances. Any doctor may undertake the interview, although in appointing a doctor, employers should consider our recommendations at 2(b) above.

5. Interview results may be released to the employer if the employee consents

In theory, a doctor may share the interview results with the employer as the employee's interview request could be regarded as his/her implied consent to the disclosure. However, we would recommend that the employee's express consent be obtained before the doctor discloses any results to the employer, as the results may contain personal information from matters raised during the interview that may go beyond the scope of such implied consent.

6. Employer may be required to implement remedial action if recommended

After the employer has received the interview results, the doctor may recommend remedial measures to address the employee's stress, in which case, the employer must implement such measures in consultation with the doctor. For example, this may include shorter working hours or a change of workplace or duties. The employer must also keep a record of the interview results on file for five years in principle.

What other stress check-related obligations does my organisation need to be aware of?

• Anti-discrimination: Employers are prohibited from treating employees unfavourably based on the fact that they have requested a stress check or a further interview.
• Health committee: Applicable Employers must establish a health committee to oversee the introduction and implementation of stress checks.
• Reporting obligations: Applicable Employers must submit a report to their Labour Standards Office to show that they have complied with the stress check requirements, and may face penalties if this is not complied with. (A link to the format for the report in Japanese language is available at www.mhlw.go.jp/bunya/roudoukijun/anzeneisei12/.)

Please click on the links below for the other articles in the May 2016 edition of Ashurst's World@Work

• Misconduct by social media - a global perspective
• German employees who use their own devices for work - problems and solutions
• Update on the Australian anti-bullying regime
• Mandatory gender pay reporting in the UK for large employers
• French Supreme Court allows claim by trade union for employer's data protection breach
• The implications of Brexit for employment law in the UK