Changes to the Karoshi Threshold and the Exclusion of Housekeepers from Lab

 Makoto Iwahashi(POSSE)

JUN 26 2021 

On June 23, newspaper outlets reported that the government is considering modifying the karoshi threshold, which is used by the Ministry of Health, Labour and Welfare to determine a death from brain and/or heart disease would be considered work-related or karoshi.

The current cap, which has not been changed for the last 20 years, states that there is a likely chance of a case being determined as work-related if a person works 100 hours of overtime in a month before the onset of his/her illness or an average of 80 hours in two to six months before the onset of the illness. On paper, overtime is not the only criterion when determining karoshi and the government takes into account other workplace issues which may cause workplace stress but essentially the threshold has acted as the cutoff. This is apparent from the fact that among the cases acknowledges as work-related only 10 percent had an overtime of less than 80 hours per month.

A family members group has been advocating for lowering the threshold for many years. There have been a number of instances where a case was denied either by the ministry or court simply because the victim was “only” working 60-70 hours of overtime in a month. It made it extra difficult when the family members of a victim are given limited access to whatever evidence the company might possess regarding the victim’s working conditions. The ministry itself claims that there is a high risk of suffering brain and/or heart diseases by working more than 45 hours of overtime per month. In addition, World Health Organization just published a report stating that workers working 55 hours per week (60 hours of overtime per month under the standard forty-hour work week) have a higher risk of sustaining illnesses related to brain or heart. It seems clear that the 80-hour cap does not only ignore a number of academic research on this topic but also prevents many victims (and their family members) form seeking compensation from the government.

However, it is still unclear whether the threshold will even be lowered. The government is considering adding multiple criteria to determine whether an injury or illness is work-related in order to “examine a case in a more holistically and comprehensive manner”. New criteria considered to be added include overseas business trips to places with more than 4 hours of time differentials, less than 11 hours of rest between shifts, and working without days off. However, it’s reported that the government does not feel there’s enough evidence to lower the hourly cap.

Housekeepers Excluded from Labor Protection

Although most workers are protected by Labor Standards Act, housekeepers or domestic workers who are employed by individuals are not offered the same protections.  Article 116 of Labor Standards Act states that the act does “not apply to businesses which employ only relatives who live together nor to domestic workers,” explicitly excluding only domestic workers from being protected by the act. Since the exclusion from the act also signify domestic workers would not be covered by the workplace injury compensation program, injuries suffered while working for private households would be considered non-work related.

It is worth noting that domestic workers employed by corporations which would then dispatch the workers to households are protected by Labor Standards Act. Only those who agrees to an employment contract working for a private household are excluded (whether the worker is living in the house with his/her employer does not matter in terms of labor rights protections). Domestic workers are the only group of workers explicitly excluded from being able to claim workplace injury compensation.

Almost 70 years after the law was enacted, the program has finally become a social issue. A 68 -year-old Japanese domestic worker passed away from a heart attack after working six consecutive days of almost 24 hours without any break in 2015. Her husband submitted a workplace injury compensation claim to Shibuya Labor Standards Office in 2017 but was denied any compensation since she should be considered a domestic worker under Article 116 Section 2 of Labor Standards Act.

With assistance from Posse, her 72 year old husband filed a lawsuit against the Ministry of Health, Labour and Welfare in Tokyo District Court in March 2020, claiming that he should be able to receive compensation from the government for her loss and discriminating against domestic workers working for private households should be considered unconstitutional. It is considered the first lawsuit of its kind. The case is still ongoing.

In order to encourage more women to enter the labor market, the Japanese government has created Special Economic Zones to allow migrant workers to work in these zones as domestic workers. Before the pandemic, more than 1,000 female workers almost all of them from the Philippines entered Japan as housekeepers. Even though they would be protected by Labor Standards Act since all of them are employees of major elderly care companies, once they (or any housekeeper) are hired by individual private households, they would lose all of their rights.

The above lawsuit is challenging the law which has been tolerating discrimination and treating housekeepers as disposable.