疫情下日本居家工作電傳勞動之相關法律爭議：兼論對我國的啟示

Legal Issues Related to WFH / Telework under the Epidemic in Japan: On the Enlightenment to Taiwan

隨著新冠肺炎疫情全球肆虐，不僅對民眾的日常生活帶來了影響，對於勞動關係也帶來了衝擊。為了因應防疫需求，勞工在家裡使用資訊傳播科技（Information and Communications Technology, ICT）完成雇主所交付的工作，也就是所謂電傳勞動中居家工作的工作方式，成為企業維持繼續營運的重要工具，同時也是防疫的重要手段。居家工作雖非新興的法律問題，但隨著疫情情勢的嚴峻，許多公司緊急地要求勞工居家工作，避免出勤以防止疫情的擴大而不得不實施電傳勞動。本文針對居家工作電傳勞動的類型，就日本法上雇主實施電傳勞動是否有勞基法或勞動契約法上的障礙、雇主有無片面實施電傳勞動之電傳勞動命令權、勞工於雇主不願意實施電傳勞動時，是否有電傳勞動請求權等前提問題進行檢討後，就實施電傳勞動時，勞工工作時間的管理、勞工隱私權與私生活的保護，雇主安全衛生事項的履行，以及職業災害的認定，進行探討。其次，聚焦日本法上的重要論點，就我國相關法律問題進行檢視，以期對我國學術及實務日後的發展，提出值得參考的論點。

As the covid-19 pneumonia epidemic is raging around the world, it not only has an impact on the daily lives of the people, but also has an impact on labor relations. In order to meet the needs of epidemic prevention, the employees use Information and Communications Technology (ICT) at home to complete the work assigned by the employer. The working method of WFH / telework has become an important tool for companies to maintain their operations, as well as an important means for epidemic prevention. WFH is not an emerging legal issue, but with the severity of the epidemic, many in the world’s workforce have shifted to homeworking. Many companies urgently require employees to work from home without planning in advance. They do not want their employees to go to the office in order to prevent the spread of the epidemic and have to implement telework. This article focuses on the WFH / telework under the epidemic and discusses the legal issues in Japan, such as whether there are obstacles in the Labor Standards Act or Labor Contracts Act for employers to implement telework, whether the employers have the right to implement telework order unilaterally, and whether the employees have the right to telework when the employers discontinue telework and ask the employees to go back to the office. Secondly, the management of teleworkers’ working hours, the protection of employees’ privacy and private life, the right to disconnect, how the employers fulfill their obligations under the Occupational Safety and Health Act when employees work from home, and the workers’ compensation such as whether the employees are injured at work or acquire an occupational disease during the implementation of telework will be discussed. Finally, comparing on important points in Japanese law, relevant legal issues in Taiwan will be reviewed for reference for academic and practical development in the future.