Employment Update, Germany - May 2008

06 May 2008

Lutz Hoheisel

Legislation – release from active duties for employees’ near relatives in need of care

Background

The “bill on the structural development of the public long term care insurance” is currently in the parliamentary process. It is envisaged that the bill will be finally passed at the end of April 2008. Whilst the bill mainly provides for new rules on public long term care insurance, it also introduces a new employment law envisaged to come into effect on 1 July 2008: The “Act on Care Breaks”.

New Act on Care Breaks

The Act on Care Breaks intends to develop the compatibility of the employees’ job and home care of near relatives. Employees will be entitled to a release from their active duties either for a short or a longer period. Near relatives are defined as spouse or partner, children, parents-in-law, siblings.

Employees have the right to stay at home for a maximum of ten days if this is required, in an unforeseen urgent situation, to organise or safeguard the care for a near relative who is in need of care. The consent of the employer for that release from active duties is not required. However, the employee is under obligation to inform the employer about his/her inability to work and the expected duration thereof. On request, the employee has to show proof of the need of care of the near relative by a medical certificate. Need of care is deemed to be given if the near relative is classified at least into care level 1 within the meaning of the public care insurance, or if the near relative is very likely to be classified into such level. During the release of active duties, the employee is not entitled to further receive remuneration, unless different legal bases, like the employment contract or a collective agreement, provide otherwise.

If an employer employs more than 15 employees, its employees have a second option. They can take a long term care break for up to six months in order to care for near relatives at home. The long term care break must be notified to the employer at least ten days before commencement. In this notification, the employee must inform the employer about the term and the extent of his/her release from active duties. Further, the need for care of the near relative must be demonstrated by a certificate of the competent authority. During the care break, the employee can work part time if employer and employee find an agreement on this. However, the wish of the employee to work part time can only be rejected by the employer in case of urgent operational needs.

During the release from active duties for a short term or during the care break, the employee enjoys special termination protection. Any notice of termination is only admissible if the authority for job safety gives its prior consent thereto.

Effect on employers

It remains to be seen whether employees have a great demand for these two new forms of temporary release from active duties. However, it is likely that disputes will arises if employees want to work part time during a care break. As employers can reject such wish for urgent operational needs only, it would finally be up to employment courts to determine in which cases such needs are given.