Absence of the employee in the event of a sick child

Release from work in the event of personal incapacityBy their very nature, working parents are forced to balance family and career. This can work well as long as all family members are healthy. If a child falls ill, however, the question arises as to who can stay with the child and what then happens to the work.

For parents who are covered by statutory health insurance, in particular the § 45 SGB V significantly.

According to this, in the case of children under twelve years of age, there is a Entitlement to leave of absence up to 10 working days per year for each child. Single parents are entitled to time off for up to 20 working days.

In addition to the entitlement to time off, the parent has a Entitlement to sick pay according to § 45 paragraph 1 SGB V. Sick pay, also known as "children's sick pay," averages 75 percent of net income. You can calculate the amount of your sick pay yourself online, for example with the TK sick pay calculator.

In case of illness of a child:

– for married persons: max 10 days per calendar year – for single parents: max. 20 days per calendar year for single parents.

In case of illness of several children:

– for married persons: max. 25 days per calendar year – for single parents: max. 50 days per calendar year.

Privately insured employees are also entitled to appropriate time off, but not to sick pay. Even if the child is not (co-)insured in the statutory health insurance, there is no entitlement to sick pay.

In summary, there is an entitlement to leave of absence and sick pay after if the following conditions are met:

– sick child under 12 years of age – medical certificate from the first day of illness – no other person living in the household is available to care for and look after the child – the child is covered by (co-)health insurance by law

If the child twelve years of age or older, so that there is no claim according to § 45 SGB V, leave must be submitted or unpaid leave must be agreed with the employer.

Temporary prevention according to § 616 BGB (German Civil Code)

For privately insured employees, a claim for compensation can only be considered in accordance with § 616 of the German Civil Code (BGB). The provision applies equally to those with private insurance and those with statutory insurance.

According to this, the employer must release the employee from work for a short period of time.

However, whether the employee actually continues to receive his or her salary despite time off depends on the contractual agreements in the individual case. In principle, § 616 BGB stipulates that the employee does not lose his entitlement to remuneration if he is only temporarily prevented is to comply with his work. In doing so, he/she must not be at fault for the impediment. This is the case in the event of illness of the child. In the event of a short-term absence, the employee continues to receive his or her salary in accordance with § 616 BGB.

How many days the "temporary prevention" mentioned in the regulation means has been decided by the Federal Labor Court. Temporary therefore means a relatively insignificant period of time five working days (Federal Labor Court, ruling dated 19.04.1978, 5 AZR 834/76).

The employee must, however, be credited with the amount which he is entitled to for the period of prevention from a health or accident insurance existing on the basis of legal obligation. Thus, if the employee is a member of the statutory health insurance, the payments according to § 45 SGB V take precedence over.

Furthermore, it is possible that the Continued payment of wages according to § 616 BGB excluded becomes. For the provision is not mandatory; it may be limited or excluded altogether by the labor or collective bargaining agreement.

Therefore, especially as a privately insured person, you should pay attention to whether § 616 BGB is excluded in your employment or collective bargaining agreement.

Properly assert claims for time off and sick pay

To ensure that you do not get into trouble with your employer even if you stay at home with your sick child and receive your respective pay entitlements without loss, take care of the following points:

1. Immediately notify the employer that you will have to stay home because of your sick child, and probably for how long, so that the employer can reschedule accordingly because of your absence. 2. Have the doctor ie a certificate that, in addition to the child's illness, also certifies that the child requires supervision, care or nursing, so that one parent must be absent from work. 3. The employer may require a medical certificate; in this respect, it is advisable to send him the certificate immediately with the request for time off. 4. At the same time, file an application for sickness benefit with your health insurance fund; here, too, you must submit the medical certificate. For the claim, an application form must be filled out, which you will receive from your health insurance company.

To take sick leave yourself?

Should all sick days resp. days off have been used up, you as a parent may think of taking sick leave yourself. However, this is not legally permissible. Can lead to termination without notice in case of doubt. So, if all the days are used up, leave can be requested. If necessary, overtime can also be reduced or minus hours accumulated and worked off later. Perhaps a solution can also be found with the employer to the effect that work is done in the home office.

Entitlement in the event of an accident to the child

If the child is injured as a result of an accident and therefore requires care, a claim for sick pay against the Accident insurance exist. This is the case if the accident occurred in kindergarten, daycare or school or on the way to or from the respective site.

Claims in cases of serious illness

In the case of more protracted illnesses of the child, there are claims under the Caregiver Leave Act, as regulated there in particular in §§ 2-4 PflegeZG. These claims apply not only to the care of children, but also to other close relatives. Only unpaid leave of absence can be claimed from this. A claim to remuneration can only arise from § 616 BGB.

A distinction is made between the right to Short-term leave of absence (up to 10 days for short-term care or organization of longer-term care) and the right to a longer-term care time for home care.

If a legally insured child is terminally ill, the following applies § 45 para. 4 SGB V. In the cases mentioned there, the parents unlimited in time Claim time off work and payment of children's sick pay.

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