On 25 March, 2020 the Bundestag passed the law to protect the population in the event of an epidemic situation of national importance. In addition to creating a far-reaching power of authorization for the Federal Ministry of Health and Care in the event of the occurrence of an epidemic situation of national importance, the legislator has extended the compensation claims provided for by the Protection against Infection Act (IfSG) in favour of working persons with custody.
1.Previous legal situation
Under the previous legal situation, employees could only remain absent from work to a very limited extent without losing their entitlement to remuneration. If schools or similar child-care facilities were closed, employees were allowed to remain absent from work if it was absolutely necessary for them to look after the child. However, the employee regularly lost his entitlement to the contractual remuneration as a result. This was due to the fact that sec. 616 of the Civil Code maintained the entitlement to remuneration for only a few days. In addition, this provision can be waived and is excluded in most employment contracts.
Previously, the IfSG also did not provide for compensation for the loss of earnings of the employee in the event of an official closure of the childcare facility.
2. Requirements for the right to compensation
According to the new legal situation, working persons with custody rights are now entitled to compensation under the following conditions:
- Facilities for the care of children or schools are temporarily shut down or entry to such facilities is prohibited by the competent authority.
- The shut-down or the prohibition to enter the premises is to prevent the spread of infections or transmissible diseases in accordance with IfSG.
- The child has not yet reached the age of 12 years or is disabled and needs help.
- The care must be provided by the employed person with custody rights because there is no other reasonable possibility of care.
- The employee entitled to custody suffers a loss of earnings as a result.
3. Requirements in detail
3.1 Lack of other reasonable possibilities for child-care
The lack of other care possibilities must be demonstrated to the employer and the competent authority upon request. A reasonable possibility of care is given, for example, if there is an entitlement to so-called emergency care in the day-care centre or school, if the other parent can be called upon or if other family members or relatives willing to do so can take care of the child.
Persons belonging to a group at risk of infection or communicable diseases for the prevention or spread of which the childcare facilities or schools have been temporarily closed or banned from entering by the competent authority shall not be considered “reasonable care possibilities” for the purposes of this Regulation.
3.2 Loss of earnings
The right to compensation only exists if the guardian suffers a loss of earnings due to the official closure of the schools or the prohibition to enter the school. This is not the case if and to the extent that the person with custody can already be absent from work on other legal, collective, company or individual contractual bases with continued payment of remuneration or a monetary benefit corresponding to the amount of remuneration. In particular, according to the reasons for the law, existing time credits must be given priority and the possibility of using the home office must be used.
4. Amount of the claim for compensation
The compensation amounts to 67% of the loss of earnings incurred by the working custodian and is limited to a maximum amount of EUR 2016.00.
5. Duration of the right to compensation
The allowance shall be granted to the employee entitled to custody for a maximum period of six weeks.
6. Exclusion of the claim
The claim is excluded if the school or childcare facility would be closed anyway due to the school holidays.
7. Entry into force
The above regulations came into force on 28 March, 2020.
We will of course keep you informed about further changes in the legal situation!
