Child sick? Release of the employee from work and continued payment of the salary – lawyer will

Sickness benefit if the child falls ill (Photo: © -Bernd Leitner /

Employees are generally entitled to leave from work if the child is ill. On the other hand, entitlement to wages is limited and depends on the duration of the illness.

1. General

Employees are only paid when they work. The rule is: "No wages without work".

Some exceptions The principle of “no wages without work” means paid vacation, continued payment of wages In case of illness and continued payment before and after childbirth in accordance with statutory maternity protection. In these cases, the remuneration continues to be paid even though no work has been done. There is also a claim to in some other cases Remuneration despite loss of work. These cases regulated in the BGB are:

    • Prevention for personal reasons (§ 616 sentence 1 BGB)
    • Prevention due to job search (§ 629 in conjunction with § 616 sentence 1 BGB)
    • Delay in acceptance by the employer, especially after ineffective termination (Section 615 sentence 1)
    • Disruptions to operations
    • Permissible exercise of the right of retention (§ 273 in conjunction with § 615 sentence 1)

    2. Right to remuneration and leave of absence if the child is briefly ill

    • According to section 616 sentence 1 of the German Civil Code, the employer cannot withhold or reduce the employee’s remuneration if the employee is "prevented for a comparatively insignificant period of time by a personal reason without being at fault for the service".
    • If the child falls ill, the employee has the opportunity to look after the child at home for a short period of time.
    • In the above and similar cases, you can request your normal remuneration even if you do not show up at work. The prerequisite for this, however, is that your absence only lasts “a relatively insignificant time”. Jurisdiction accepts 1 to 5 days, depending on the situation. In the case of a child under the age of 8, the Federal Labor Court (judgment of April 19, 1978, file number 5 AZR 834/76, published in: NJW 1978, 2316) has one Period of 5 days considered admissible. For the first few days of the illness of such a child, the employee can generally not be advised that people living outside the household could look after or look after the child (Federal Labor Court of April 19, 1978)..
    • The employee then receives his wages.
    • This right to paid leave to care for a sick child is often excluded by a collective agreement or employment contract (BAG, judgment of 20 June 1979, Az: 5 AZR 479/77, published in: NJW 1980, p. 903)) You always check the collective agreement or the employment contract first.

    3. Right to (unpaid) leave and child sickness benefit according to § 45 SGB V for short illnesses

    If the right to paid leave is excluded or has already been used up, there is a right to unpaid leave in accordance with § 45 SGB V. In this case, employees receive a so-called child sickness benefit from their health insurance as a wage replacement. Employees and children must have statutory health insurance. If the child is not insured under statutory health insurance – either free of charge as part of the family insurance or subject to contributions as a separate insurance), this entitlement does not exist.

    In principle, children up to the age of 12 are entitled to an exemption of up to 10 working days per year per child (section 45 (2) sentence 1 of the Social Code Book V). For single parents, the period is extended to up to 20 working days. The claim exists for insured persons for no more than 25 working days, for single parents for not more than 50 working days per calendar year

    The right to exemption cannot be excluded or limited by contract.

    4. Right to unpaid and indefinite leave of absence as well as child sickness benefit in accordance with Section 45 (4) SGB V in the event of serious illness

    • If a child is terminally ill and has only a few weeks or months left to live, the caring parent is entitled to leave and child sick leave indefinitely.
    • The basis for the claim is § 45 SGB V
    • Thereafter, there is an unlimited claim if the child suffers from an illness,
    • which is progressive and has already reached a very advanced stage,
    • where a cure is excluded and palliative medical treatment is necessary or desired by a parent and
    • that can only be expected to have a limited life expectancy of weeks or a few months. (§ 45 Abs. 4 SGB V)
  • There is also an indefinite right to be released from work to look after and accompany the child, especially if the child is cared for as an inpatient in a children’s hospice or outpatient through a hospice service, but also if he is treated with palliative care in the hospital.
  • The entitlement is only for one parent
  • Sickness benefit is paid
  • The entitlement only exists if the employee is legally insured.
  • Important: Insured by private health insurance are not entitled to daily sickness benefits, but only to an exemption (without continued payment of wages).

    Child sickness benefit is – like the insured person’s sickness benefit own Incapacity to work – 70% of the wages subject to contributions and may not exceed 90% of the net wages (§ 47 SGB V).

    Employees who are not insured and who are entitled to sickness benefit under Section 45 (1) SGB V are also entitled to unpaid leave.

    5. Entitlement of civil servants

    In the public sector, there is a collective agreement between employees who have an employment relationship with the federal government or with an employer who is a member of a member association of the Association of Local Employers’ Associations (VKA). Collective agreement for the public service is abbreviated TVöD. According to Section 29 (1) TVöD, an employee has the right to be released from work for up to four working days in a calendar year while paying the remuneration,

    • if a child under the age of twelve heavy ill,
    • due to the illness there is no entitlement to sickness benefit according to § 45 SGB V.,
    • another person for care and support is not immediately available
    • and the need for the presence of the employee for provisional care is medically certified.

    6. Special leave for civil servants

    Special regulations apply to civil servants in accordance with Section 12 of the Special Leave Ordinance. According to Section 12 Paragraph 3 No. 7 of the Ordinance on Special Leave for Federal Officials, Federal Judges, civil servants are entitled to four days of special leave from work because of sick child per holiday year to

    Officials in North Rhine-Westphalia whose gross income is above the compulsory health insurance limit (2015: € 54,900) have 4 working days for each child under the age of 12, max. 12 working days (see §33 of the Exemption and Vacation Ordinance NRW – FrUrlV NRW).

    The following rules apply to civil servants whose gross income in 2014 is below the mandatory statutory health insurance limit of € 53,550 per month:

    in the case of sick children under the age of 12, the civil servants have 10 working days, and in the case of several sick children, the civil servants have 25 working days. If the civil servant is a single parent, he / she is entitled to 20 working days and, for several children, a maximum of 50 working days.

    Rights notice: Photo: © -Bernd_Leitner /

    Lawyer Klaus Wille
    Specialist lawyer for family law
    Breite Str. 147 -151
    50667 Cologne

    Telephone: 0221/2724745
    Fax: 0221/2724747


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    Christina Cherry
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