Introduction

Since the initial spread of COVID-19 in Japan, many medical institutions have suffered a loss in revenue due to a decrease in the number of outpatients and the postponement of scheduled treatment and surgery. I believe that the question of whether revenue can be somehow stabilized while establishing a service provision model that suits the characteristics of the region an institution serves, in preparation for the anticipated second wave of spread of COVID-19 infections, is a management issue for all medical institutions.

In this regard, the Ministry of Health, Labour and Welfare recently issued a notice containing specific measures regarding the assignment of medical staff from the perspective of securing the necessary staff in each region (link to notice in Japanese). Some hospitals and clinics that accept COVID-19 patients may consider the options described in the hypothetical above in addition to accepting the dispatch of external staff. Therefore, in this column I will explain the issues related to the re-assignment of medical staff. Please note that the situation regarding the COVID-19 pandemic is changing on a daily basis, and that the following discussion is based on information that was correct at the time of publication.

Considering the Hypothetical Case

1. Legality of the Reassignment

In this case, the legality of the reassignments is the primary issue. As discussed in a previous column (in Japanese) by Shohei Tezuka, (assuming the employer has the right to order the reassignment of employees) the issue is whether the employer’s exercise of the right to order reassignment is restricted by an agreement with the employee or could be argued as an abuse of the right.

Regarding the hypothetical case, in particular whether there is an operational need for the reassignment and the degree of disadvantage to the personnel in question, it is necessary to make a comparative assessment that takes into account the circumstances of each individual. Therefore, there is a possibility that the legality of the reassignment will be questioned if a staff member is listed merely for reasons such as they are “young,” “unmarried” or “without children” (See the Tokyo High Court decision dated 14^th March 2019 for a recent case which identified that a reassignment order that lacked consideration for the social life and work-life balance of the employee could form the basis for a compensation claim. However, this case was primarily concerned with the question of whether an unofficial notice of a reassignment constitutes a tort.)

On the other hand, according to the “Act on Childcare Leave, Caregiver Leave, and Other Measures for the Welfare of Workers Caring for Children or Other Family Members” (the “Care Leave Law”), recent court cases that have considered the purpose of the Care Leave Law and the various government notices on the topic, employers are required to give preferential consideration to workers who provide childcare or nursing care within their home. Therefore, in the current situation where we are yet to understand the full pathology of COVID-19, it is inevitable that most of the employees that come under consideration for reassignment will be those who do not have responsibilities for childcare or nursing care at home.

In this way, this hypothetical case is one in which careful consideration needs to be given to the extent that the personal circumstances of each staff member are considered, particularly from the point of view of privacy of the staff and equality in HR decisions.

2. Reducing the Burden on Reassigned Staff

While it is difficult to find a definite solution to this issue, I believe that sincerely responding to the living conditions and opinions of each employee and specifically examining ways to reduce the burden on those subject to reassignment will not only ensure the legality of the reassignment but also lead to a sense of fairness in the HR process. For example, these measures could be considered:

• Actively requesting each employee to report their living environment (e.g. family composition, etc.)
• Payment of an adequate hazard allowances to reassigned personnel (e.g. provision of accommodation and rest areas to prevent infection) or favourable consideration in personnel assessments
• Ascertaining lifestyle and mental health care through regular interviews following reassignment
• Introduction of a periodic rotation system
• Implementation of periodic PCR tests (this also relates to the issue of safety obligations)

3. Considerations for Pregnant and Older Staff

As a preliminary issue to the above considerations, the Ministry of Health, Labour and Welfare has issued a request that consideration be given in labour management to preventing the transmission of COVID-19 to employees who are pregnant, elderly or have underlying conditions  (link to notice in Japanese) Therefore, it is appropriate to consider excluding them from the reassignment.

Responses to COVID-19 by Medical Institutions

Regarding the response to COVID-19 by medical institutions, in addition to the issues faced by other businesses, there is also a variety of practical issues that are specific to the health care industry, such as online consultation and treatment, personnel and labour management of medical staff, procedural requirements under the Medical Care Act and related laws, and financial measures.

As for some of these issues, notifications and administrative communications have been issued by the Ministry of Health, Labour and Welfare and other government agencies, and these will serve as a guideline to the response of these agencies. However, the fundamental legal nature of these individual notices is that of administrative rulings (which are not binding in principle) and they do not comprehensively address the legal issues that may arise in an individual response. Furthermore, in the era of the “with COVID” society, unlike the government’s previous decisions made during the state of emergency period, it is necessary to make flexible and appropriate judgments according to the circumstances at that time, and the hurdles that medical institutions are required to clear will be higher than in the past. In view of these factors, I recommend consulting with an expert in advance if you have any concerns about legal decisions made in individual cases.