A sick child is a stressful situation for working parents. On the one hand, the offspring special care, on the other hand there are the obligations as employees. The legislator has made clear regulations about the rights of legal guardians in the event of illness of the child.
Right to exemption: the current legal situation
Basically, every employee is entitled to an exemption – without deducting vacation days. How many working days this entitlement depends on the insurance status of the employee and the age of the child.
If the employee and child have statutory health insurance, each parent is entitled to up to ten sick days per child per child in accordance with Section 45 (2) SGB V; if several children are required, the period increases to up to 25 working days. Single parents are entitled to twice as many days each. The employer cannot reduce this entitlement to exemption by means of corresponding clauses in the employment or collective agreement.
If employees or children have a different insurance status, both are privately insured, for example, according to the current case law, each parent is entitled to an exemption of up to five working days per child and year according to § 616 BGB (see BAG judgment of 04/19/1978 ref .: AZR 834/76). However, this right can be reduced by the employer through an employment or collective agreement.
Attention: Children under the age of 12 will no longer be entitled to an exemption. If parents still want to look after their child, they must take a vacation. The only exception is if other childcare is not appropriate or not feasible for a temporary period, for example for children with disabilities or in need of care.
Child sick: employer not obliged to continue paying wages
In Germany there is no statutory entitlement to continued payment of wages if the child is ill. Nevertheless, this can be derived from § 616 BGB. It says:
"The person obliged to provide the service is not deprived of the right to remuneration by being prevented for a relatively insignificant period of time by a personal reason without being at fault for the service."
Accordingly, workers retain their right to wages if they are unable to work for an insignificant period of time through no fault of their own. According to current case law, a period of up to five days is considered "irrelevant". For this period, the employer has to pay the same amount that would be due to the employee if he had worked regularly.
However, the entitlement arising from Section 616 of the German Civil Code can be reduced or excluded by an employment or collective agreement. Those affected should clarify whether relevant clauses are effective with the help of legal advice. A reliable private legal protection insurance helps in the search for a competent lawyer.
No entitlement to continued payment of wages – what now??
If parents are not entitled to continued payment of wages, they can Apply for § 45 SGB V child sickness benefit. To do this, parents and children must be insured in a statutory health insurance company. The right to child sickness benefit covers the entire period of leave. Parents receive 70 percent of their gross salary during their time off, but no more than 90 percent of their net salary.
In order for the employee to be able to claim child sickness benefit, the following conditions must be met:
- A doctor must certify the child’s illness and determine that care from a legal guardian is necessary
- No other person living in the household can take care of the child
- The child has not yet reached the age of 12.
Note: the right to child sickness benefit is always only for one parent, but never for both legal guardians.
Special regulations for civil servants and the self-employed
Federal officials are entitled to four days’ exemption per child per year, but they always receive their full wages. The length of the period varies depending on the state. If the paid sick days are used up, civil servants can § 22 SUrlV apply for unpaid special leave in individual cases.
The same rules apply to the self-employed as to privately insured workers who are not entitled to continued wages in the event of illness of the child. But: Anyone who is legally insured as a self-employed person will only receive child sickness benefit from the child’s 43rd sick day.
Are employees obliged to work from home?
No. Parents due to illness their child cannot come to work, must not be required to work in the home office. However, in the sense of a good working atmosphere, it can be advantageous to offer the employer a short time at home – for example, during the time the child is sleeping or is being looked after by the partner.
Child sick: This is what workers should do
- Inform the employer
If the child suddenly falls ill, parents should inform their employer immediately so that the employer can redistribute the work to colleagues.
- See a doctor
If the disease persists on the second or third day, workers should join your child see a doctor. This clarifies the expected duration of the illness and, if necessary, issues the necessary certificates for the employer.
- Apply for exemption and child sickness benefit
If it is clear how long the doctor will leave the child on sick leave, employees should immediately claim their leave of absence and apply for child sick pay.
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