If a child falls ill

When a child falls illSeptember 2010 – Both working parents and their employers have questions about the right to time off and the payment of wages when a child falls ill and home care becomes necessary.The following article provides an overview of the legal entitlements and tips for payroll accounting.

Entitlement to unpaid leave of absence

If parents are employed and one of them has to supervise, care for and look after a sick child under the age of twelve at home according to a medical certificate, because no other household member can take over this task, there is a legal entitlement to unpaid leave from work.

According to Section 45 of the German Social Code (SGB V), the entitlement to time off for each working parent in a calendar year is as follows

– for each child a maximum of ten working days, – for three or more children a maximum of 25 working days in total.

For single parents, this entitlement is doubled and amounts to 20 working days per child, up to a maximum of 50 working days in total. This puts single parents on an equal footing with married couples when it is necessary to care for sick children.

Notice:
If a child falls ill during the recreational leave already granted by the employer, there is no right to subsequent granting of the leave. (Judgment of the ArbG Berlin of 17.6.2010, Az. The unpaid leave entitlement of working parents applies to persons insured under the statutory health insurance scheme. Since 1.8.2002 also applies to persons who are not insured under the statutory health insurance scheme (§ 45 Para.8.2002 also for employees who are not insured under the statutory health insurance scheme (§ 45 para. 5 i.V.m. Sec. 3 SGB V). This ensures the entitlement under labor law for all working parents. It cannot be excluded or limited by a contractual provision.

Entitlement to paid time off

If an employee has to be absent from work for a relatively insignificant period of time for personal reasons and through no fault of his or her own, he or she is entitled to time off and continued payment of full remuneration in accordance with Section 616 of the German Civil Code (BGB). This also applies in the case of necessary care of a sick child. According to a BAG ruling, if a child under the age of eight falls ill, a leave of absence with continued payment of full remuneration is justified for a period of up to five working days (BAG ruling of 19.4.1978 – 5 AZR 834/76).

Note:
The employer cannot claim reimbursement under the Expenditure Compensation Act for the pay to be continued, since it is not a case of continued payment of pay within the meaning of the Continued Payment of Remuneration Act.

However, the employee's entitlement under Section 616 of the German Civil Code (BGB) to continued payment of remuneration in the event of the illness of a child may be contractually restricted or even excluded altogether. By means of corresponding regulations in the employment contract, in the company agreement or in the collective agreement, the entitlement to continued payment of remuneration could, for example, be limited to three or to four days. Also possible is an extended paid leave entitlement for five working days up to the age of twelve or an agreement that the child care sick pay granted by the health insurance funds is topped up to the net pay. Contracts under labor law may also contain an exclusion clause, for example the following sentence: "Entitlement to remuneration in the event of personal prevention within the meaning of Section 616 of the German Civil Code (BGB) does not exist if the employee is absent from work due to illness of a child."

Entitlement to sick pay when the child is ill

If a person insured under the statutory health insurance scheme is entitled to sick pay, this sick pay entitlement also exists for the duration of unpaid leave to care for a sick child. The insured mother or father receives for the time of the leave of absence. Care the so-called child care sick pay. Prerequisite is that the child is also insured in the statutory health insurance. This condition is always met in the case of family insurance (§ 10 SGB V).

Since child care sick pay is only granted if the caregiver is legally insured and entitled to sick pay, privately insured persons do not receive child care sick pay.

Child care sick pay is also not paid as long as there is an entitlement under labor law to continued payment for time off to care for a sick child. The employer's continued payment of remuneration therefore has priority. Must be certified by the employer on the application for child care sick pay. The days of leave paid by the employer are then counted towards the period of entitlement to childcare sick pay. The entitlement to time off work and the period of entitlement to child care sick pay is not extended by the number of days of continued payment by the employer.

Notice:
If an unpaid leave of absence for the care of the child according to § 45 SGB V is applied for during the leave of absence already granted by the employer, the vacation allowance according to § 11 BUrlG by the employer is also cancelled. (Judgment of the ArbG Berlin of 17.6.2010, Az. 2 Ca 1648/10)

The child care sick pay is not granted according to calendar days, but according to working days, analogously to the exemption entitlement. It amounts – like the sick pay of the insured person in case of own incapacity for work – to 70% of the contributory remuneration and may not exceed 90% of the net remuneration (§ 47 SGB V). Contributions to nursing care, pension and unemployment insurance are withheld and paid by the health insurance fund from the child care sick pay.

Note:
Possible employer subsidies for children's health care allowance are subject to payroll tax. They are subject to social insurance contributions if, together with the childcare sick pay, they exceed net pay by more than €50 (§ 23c SGB IV).

Transfer of entitlement to leave and entitlement to child care sick pay

Sometimes one parent's entitlement to leave and childcare sick pay has already been exhausted and the other parent is unable to continue caring for the sick child for work-related reasons, despite the existing entitlement to leave. In such cases, a transfer of the exemption entitlement is possible. First, the employer must agree to grant more extensive leave to care for the sick child. However, the employee on leave is not entitled to continued payment of wages from his employer again. In the interest of a family-oriented handling of § 45 SGB V, this transfer request of the parents is accepted by the health insurance funds and child care sick pay is paid by the health insurance fund of the insured person who takes the extended leave (discussion result of the central associations of the health insurance funds of 29.6.1994). Prior to this, the health insurance fund of the other parent must confirm the still existing entitlement to child care sick pay. Parents wishing to transfer their entitlement should therefore contact their health insurance provider in good time and involve them in the process. This is especially important if the parents belong to different health insurance funds.

– the leave entitlement of one parent has already been exhausted and the other parent cannot take over the care of the sick child for professional reasons,

– the employer agrees to a further leave of absence,

– both parents are insured in a statutory health insurance fund,

Example:
A working parent is covered by statutory health insurance. Her three co-insured children Anke, Berit and Caspar are still under twelve years old. This calendar year, the mother had already provided for Anke. Berit must claim ten days of child care sick pay in each case. Now Caspar is sick. The mother is only entitled to childcare sick pay for five days. Since the father is unable to provide further care for work-related reasons, it is possible to transfer his ten-day entitlement to child care sick pay for this child to the mother. Prerequisite is that the mother's employer agrees to further leave of absence.

The health insurance company of the parent whose employer agrees to continued time off calculates and pays child care sick pay to their insured. The basis for calculating the child care sick pay is also here the contributory pay of the parent released to care for the sick child.

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