Sick child - rights and claims in the employment relationship

Right for entrepreneurs, employers & employee

Nowadays both parents are often employed. Single parents also often have the problem of having to reconcile work and child. Especially when the child falls ill, it often becomes difficult.

There is no clear general regulation in the law, when and how long a parent can stay at home in such cases and to what extent this has a financial impact. What applies in individual cases results from a combination of labor law and social security regulations and is dependent on a variety of factors: From the details in the respective employment contract, possibly the details in a collective agreement, the health insurance status (legally or privately insured) of the child and the Parents, the type and duration of the illness, the age of the child, but also the potential childcare options provided by others. Furthermore, a distinction must be made between claims / rights that only enable (unpaid) staying at home and those that have one Continuation of salary or a child’s sickness benefit.

Legal basis to stay with the child

Always a basic requirement: medical certificate

All regulations that make it possible to stay with the sick child at home have a common basic requirement. One is needed medical certificate, which shows that the child is sick and therefore the employee has to take care of the child.

▌ May stay at home on the basis of Section 275 (3) BGB

Section 275 (3) BGB – a right of the employee to refuse performance

Section 275 (3) BGB gives the employee the right to refuse performance with regard to his work performance. The norm says:

"The debtor may also refuse to perform if he has to provide the service in person and it cannot be reasonably expected of the creditor in consideration of the obstacle to his performance."

Translated to the case of the sick child, this means: The employee may refuse to perform work if one weighing up of the obstacle to performance "having to take care of a sick child" (= personal care of the parent) with the employer’s interest in the work shows that the employee cannot be reasonably expected to perform the work.

The crucial questions: Is there an obstacle to performance "having to take care of a sick child"? Therefore, the work performance is unreasonable?

In individual cases, the age of the child, the type of illness and the severity of the illness are important factors in assessing whether there is an obstacle to “taking care of a sick child”. Circumstances of the individual case are also relevant to assess whether the performance of the work is unreasonable, for example:

If the other parent or e.g. a close relative or caregiver can take care of the sick child is usually going to work reasonable. An employee has an obligation towards his employer to do everything possible so that he can do his job. However, if a child is younger than eight years, according to the case law of BAG 1, an employee for the first days of the illness of such a child can generally not be referred to the fact that people living outside the household could care for or look after the child.
If the working time is not specified in the employment contract, a solution should be sought with the employer. With such a solution, the employer must take the situation with the sick child as much as possible into account.
If flexible working hours or flexitime have been agreed, an attempt must first be made to reorganize attendances and absences.

Legal consequence: If it is unreasonable, the right to refuse performance exists

If "unreasonableness the work performance ”, the right to refuse performance under Section 275 (3) of the German Civil Code applies to every employee – regardless of how he / she is insured, without rigid age limits for the child and without restrictions to a certain maximum number of days per year. The obligation to work does not apply as long as the employee cannot reasonably be expected to perform the work.

Attention: The right to refuse performance can also lapse

It should be noted that this unreasonableness and thus the right to refuse performance can also lapse before the child is healthy again. If the sick child does not (no longer) need personal care from the parent, but could also look after a third party (e.g. the grandma), this must be used.

The disadvantage of § 275 paragraph 3 BGB: No salary for the time

A major disadvantage is that the employer for the periods in which the employee does not come to work on the basis of Section 275 (3) BGB, no salary have to pay. In order to be able to receive continued payment – at least for some of these days in the year – Section 616 of the German Civil Code must also apply.

▌Pay-stay-allowed on the basis of § 616 BGB (in conjunction with § 275 Abs. 3 BGB)

Section 616 of the German Civil Code – a right to paid leave

An entitlement to paid exemption results from a combination of § 616 BGB and § 275 Abs. 3 BGB. Section 616 BGB states:

"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."

The employee retains his right to remuneration if he is unable to work for a reasonably short period of time for a personal reason that is not his fault. As such a reason, a sick child easily falls under the scheme. Since § 616 BGB of “relatively insignificant time“Speaks, the regulation only applies to few Days. There is no rigid daily limit. Mostly it is believed that it is a Period of up to 5 days in the calendar year should act.

Problem: § 616 BGB is mandatory and does not apply to every employee

A major problem is that § 616 BGB does not apply to every employee. It can be limited to certain cases and maximum periods (e.g. in the case of Section 29 TVöD) in the employment contract or collective agreement or can be excluded entirely. This can be expressly formulated, but is also often concealed behind clauses such as "only work that is actually done will be remunerated." Or similar formulations.

Legal consequence of § 616 BGB: if applicable, further salary for a maximum of 5 days a year – but only if the child does not fall ill beyond 5 days!

If § 616 BGB is applicable, the employer pays up to a maximum 5 days in the calendar year further the salary. It is problematic, however, that if the 5-day period is exceeded, i.e. if the child is ill for more than 5 days in a row, the obligation to continue paying does not just end, but ceases completely! Then the factual requirement is "Relatively insignificant time" namely not relevant. The employer then has to no remuneration pay, not even for the first 5 days of the disease!

If section 616 BGB is applicable and the child’s illness exceeds the 5-day limit or if section 616 BGB is not applicable, the insurance status of the child and parents (legally insured or privately insured) is decisive. Under certain conditions there is a right to child sickness benefit according to § 45 SGB V.

▌ May stay at home on the basis of § 45 SGB V

Section 45 SGB V – a right to exemption under labor law

Social security law includes a right to an exemption under labor law in Section 45 (3) and (4) SGB V. The commonly known “10 childhood illness days” also originate from this standard..

The catch: the child must be legally insured and usually younger than 12 years

The appeal to the regulation of § 45 SGB V always has the basic requirement that the Child has statutory (!) Health insurance is.

If it is only about the exemption, both legally insured parents and privately insured parents (cf. § 45 Paragraph 5 SGB V) have this right if you legally insured child is younger than 12 or – regardless of age – is disabled and dependent on help. However, the prerequisite is that no other person living in the household (!) Can take care of the sick child. In addition, a medical certificate must be used to demonstrate that there is a need for the child to be cared for and supervised.

The famous 10 days "child sick" – How long can you stay at home?

Children under the age of 12 are entitled to an exemption from the employer of up to 10 working days per calendar year for both the mother and the father. Single parents are entitled to a maximum of 20 working days per calendar year. If you have two children, you are entitled to twice as many days. After that, i.e. from the third child, there is an upper limit: 25 working days per calendar year for both mother and father and a maximum of 50 working days for single parents. Incidentally, the Federal Social Court 2 has decided that it is sufficient to be effectively single to be able to claim the 20 days of a single parent. The fact that the other parent is also custody does not prevent that.

Unauthorized absence from work is permitted if the employer refuses to do so

Section 45 (3) SGB V is a Right of recourse. Normally, indemnity claims must be made against the employer, and if the employer refuses to do so, an urgent judicial response must be made. Both LAG Köln 3 and quite recently LAG Rheinland-Pfalz 4 have decided that Section 45 Paragraph 3 Sentence 1 SGB V not only entitles them to an exemption from work, but also, in the case of illegal refusal, the right to work “ arbitrary “to stay away.

Also with § 45 SGB V: no salary from the employer

The employer also has to assert § 45 SGB V no salary numbers. Depending on your own insurance status, there may be a claim against the health insurance company for the payment of child sickness benefit for the time being.

▌Payment of child sickness benefit by the health insurance company

Child sickness benefit only with statutory health insurance

Is the child legally insured and the parent, who cares for the sick child and therefore does not go to work, also legally insured, there is a right to payment of child sickness benefit under section 45 SGB V during the above-mentioned exemption, if that Child younger than 12 is or – regardless of age – disabled and dependent on help.

Child sickness benefit for step-parents, adoptive or foster parents as well as grandparents if they are "parent replacement"

Incidentally, not only biological parents are entitled to child sickness benefit. Since only a so-called sufficient childhood position is required (cf. § 45 para. 1 sentence 2 in conjunction with § 10 para. 4 SGB V), step parents, adoptive or foster parents as well as grandparents also have a claim if the child lives with them and they take care of the maintenance. The sick child must ultimately be connected with these people as with parents and there must not be a corresponding connection to the biological parents in parallel.

How long child sickness benefit is paid

If the child is under the age of 12 (with the 12th birthday, the entitlement ceases to apply – even if the child is moving in continuously!), Each (legally insured) parent is entitled to child sick pay 10 working days a year per child. Single parents are entitled to 20 working days. In the case of two children, the entitlement doubles; from the third child, the entitlement is limited to a maximum of 25 days a year per parent or 50 days a year for single parents.

Attention: crediting of days in which continued wages were paid

If § 616 BGB is not excluded in the employment contract or collective agreement, the prevailing opinion is that the employer is entitled to continued wages for up to five days of the child’s illness. As long as such a claim against the employer exists, the child sickness benefit claim is suspended. This means that no child sickness benefit is paid out during this time. However, the days still count as "Childhood Disease Days" and are deducted from the maximum duration. Example: If an employee has been at home with the sick child for four days and has received his salary from the employer due to § 616 BGB, he has only six of the former ten "childhood illness days" according to § 45 SGB V left for the year.

No time limit for children with severe and incurable illness

Amount of child sickness benefit

The amount of child sickness benefit is 90% of the net wages lost. If one-time payments (such as Christmas bonuses or holiday bonuses) have been paid in the last 12 calendar months before the leave, the child sickness benefit is 100% of the net wages lost. However, daily maximums apply. In 2017, a maximum of € 101.50 can be paid out per day.

In cases of terminally ill children with limited life expectancy within the meaning of Section 45 (4) SGB V, the amount of child sickness benefit corresponds to the amount of normal sickness benefit in the event of incapacity to work, i.e. according to Section 47 (1) SGB V 70% of gross income, but a maximum of 90% of net wages.

Application for child sickness benefit

You can get one from the doctor Certificate of receipt of sick pay if a child is ill. This certificate also contains the application for child sickness benefit. When you have completed this part, the certificate must be submitted to the statutory health insurance and a copy to the employer. The health insurance companies contact the employer directly for the calculation.

Special case: only absent from work by the hour / partial child sickness benefit

If the parent only part of the day, so by the hour If you are absent from work, you are entitled to child sick pay for part of the day. If partial sickness benefit is received, this day is included in the maximum limits of the entitlement, i.e. a "childhood illness day" according to § 45 SGB V is "used up". If no partial sickness benefit is drawn, there is no credit for the maximum period of benefit. Then no "teething day" goes away.

▌ Exhausted childhood illness days: Remaining options

The childhood illness days are often quickly exhausted. The employee then has the following options:

Transfer of partner days not yet used up

If both parents have a right to an exemption and, if applicable, child sickness benefit payment according to § 45 SGB V and one parent still has days left, these may be transferred to the other parent. However, there is no legal right to such a transfer. A prerequisite for a transfer is that the parent’s employer, who spends the days transfer want to leave with the transfer I Agree are. Even if the parents belong to different health insurance companies, this does not prevent transmission because the health insurance companies regulate the reimbursement of child sickness benefit payments internally.

Unpaid absence based on Section 275 (3) BGB

The right to refuse performance in accordance with Section 275 (3) of the German Civil Code (BGB), which was already explained in detail at the beginning, always allows a sick child to stay at home if the relevant requirements are met in individual cases (see above). However there is no payment for these times – Neither continued payment of wages by the employer, nor payment of child sickness benefit by the health insurance company.

Pay close attention: warning and dismissal risk

In addition, care must be taken: If the requirements of Section 275 (3) BGB are not met and the employee wrongly refuses to work, this is a breach of duty and can result in a warning and possibly termination – even if the employee incorrectly convinces was that he had the right!

In addition – even if Section 275 (3) BGB intervenes – frequent absences due to the sick child can lead to Event of Default if the operational processes are disturbed so that it is no longer reasonable for the employer. Employees in small businesses, in particular, who are not affected by the Protection against Unfair Employment Act, are relatively at risk if absenteeism increases. It is therefore advisable to maintain trusting and open dealings with the boss as much as possible and to organize yourself as best as possible in order to keep absenteeism as low as possible.

Not a good idea: Let yourself be on sick leave

Even if it may be tempting to have yourself on sick leave to care for the sick offspring, you can create one Event of Default! Taking sick leave as a healthy person is fraud against the employer, which can even justify termination without notice.

Invest your own vacation

Ultimately, there is still the possibility of using your own (annual) vacation to care for the sick child. This has at least the advantages that these days of absence cannot be counted negatively (as described under 2. regarding § 275 Paragraph 3 BGB) and that the employer continues to pay the salary as normal on vacation.

▌ Notification of the child’s illness to the employer

Employees have an obligation under the employment contract to take the interests of the employer into account (see Section 241 (2) BGB). Hence the employer to inform as early as possible, if the child is ill and the employee cannot come to work because of this. The employer can also proof require that the child has an illness that requires supervision, care or care by the employee. If the continued payment of wages under Section 616 of the German Civil Code is not excluded in the employment contract or collective agreement, the employer can withhold the salary until such a medical certificate is presented.