German law generally requires employers to take care of their employees’ needs. This obligation may become crucial in situations in which employees with children are affected. This article illustrates the most important childcare related rights of employees and the corresponding obligations employers can be faced with.
Protection of pregnant employees
The German Maternity Protection Act (Mutterschutzgesetz) prohibits pregnant women from working within the last six weeks before the expected date of birth. Further, pregnant women are generally not allowed to work more than 8.5 hours per day. This limit is reduced to 8 hours a day if the woman is less than 18 years old. Also, pregnant employees are not allowed to work on Sundays, public holidays or between 8 p.m. and 6 a.m. on any day. After the child’s birth, women may not work within the first eight weeks. During these banned periods before and after delivery, they are to be paid their regular net salary less an amount of € 13,00 per day, which is reimbursed by the health insurer.
Requests for parental leave
Following the maternity-protection periods, the mother – or alternatively the father – may take unpaid parental leave for any period of time until the child reaches the age of three years due to provisions of the German Act on Parental Allowance and Parental Leave (Bundeselterngeld- und Elternzeitgesetz). The parents can divide the parental leave period between them. In general, they must inform their employers about their parental leave plans for the first two years of the leave, seven weeks before its commencement at the latest. Subsequent changes are only permissible with the employer’s consent.
Special protection against dismissals
Both pregnant women and parents taking parental leave enjoy special protection against termination of employment. First, German law provides that a dismissal is invalid if it was made during pregnancy or within four months following the delivery. This does not apply if the pregnancy was not known to the employer and if the employer was not informed about the pregnancy within a period of two weeks after having given notice of termination. Secondly, a termination is not allowed from the moment parental leave was requested (however, eight weeks prior to the planned commencement of the leave at most) until the last day of the employee’s leave. After the end of the parental leave, dismissals are admissible again. Despite the described special protection of both pregnant women and others who request parental leave, the possible dismissal of such employees is not excluded altogether: In exceptional cases such employment relationships can be validly terminated if the dismissal is declared admissible by the appropriate authorities.
Requests for reduced working time
Employees may wish to reduce their working time for childcare reasons. Under German law, employees are generally entitled to a reduction of their individual working time if the requirements set out by the German Act on Part-Time and Fixed-Term Work (Teilzeit- und Befristungsgesetz) are fulfilled (such as, e.g., a job tenure of more than six months, a timely request three months before the desired reduction, no request for reduction of working time within the last two years, total number of employees exceeds 15) and provided that no operational reasons (e.g. material interference with the company’s organisation or unreasonably high costs for the employer) operate against the requested reduction in an individual case. In addition, employees are entitled to work part-time during their parental leave; such request can be denied by the employer only in specific cases.
Obligation to provide days off in case of children’s sickness
In case of sickness of children who are less than 12 years old, employees are entitled to be released from work for a maximum of 10 working days per child (maximum: 25 working days per calendar year). Such release can be claimed only if no other person at the employee’s home is available for child care. Both the child’s sickness and the necessity for care have to be proved by a doctor’s certificate. During such period, employees can request sickness benefits from their statutory health insurer, unless the employer is obliged to continued payment of salary. The latter might be the case under similar conditions as set out above, but generally only for a maximum of 5 working days per calendar year. In practice, however, such entitlement against the employer is often excluded in employment contracts, and thus payments generally have to be claimed from the health insurance provider.
Although deliberations are still at an early stage, the new German government about to take office plans to introduce an entitlement to return to full-time for all those part-time employees, who have reduced their working time for family related reasons. Also, the government is considering an extension of employees’ rights to part-time arrangements. In addition, it is planning to revise the provisions on parental leave to allow parents in the future a more flexible handling of their parental leave. This shows that childcare obligations of the employer as well as the corresponding entitlements of the employee are hot topics that are always developing.