Update: Childcare regulations relevant to remuneration

By decision of the Minister Presidents' Conference of 5 January 2021, the lockdown is being continued. School and childcare closures are also being extended until the end of January. In order to ease the burden on parents, child sickness benefit will be granted for an additional 10 days per parent (20 additional days for single parents) in 2021. A complex issue here is its interaction with the compensation claim according to § 56 (1)(a) German Infection Protection Act [Infektionsschutzgesetz - IfSG]. Our experts Anja Dombrowsky and Jörn Kuhn have summarised the main points.

Entitlement to child sickness benefit

In principle, parents insured under the statutory health insurance are entitled to child sickness benefit pursuant to § 45 German Social Code Book V [Sozialgesetzbuch V - SGB V] if, according to a medical certificate, they have to be absent from work in order to supervise, look after or care for their sick and insured child, if no other person living in their household can look after or care for the child and if the child has not yet reached the age of twelve or is disabled and dependent on assistance.

The claim exists against the statutory health insurance. The application to the health insurance institution must be accompanied by a medical certificate and a statement of earnings from the employer so that the amount of sickness benefit owed to the employee can be determined. The claim is for 90 percent of the lost net remuneration, but may not exceed 70 percent of the income threshold for the assessment of contributions pursuant to § 223 (3) SGB V. In principle, each parent is entitled to 10 days of child sickness benefit per child (20 days for single parents); in case of several children, however, each parent is entitled to a maximum of 25 days per calendar year (50 days maximum for single parents).

As we had already reported elsewhere, the German Hospital Future Act [Krankenhauszukunftsgesetz - KHZG], which came into force on 29 October 2020, adopted a special provision for 2020 under which each parent with statutory insurance was granted an additional 5 days of child sickness benefit per child and each single parent an additional 10 days. However, the change was only applicable until 31 December 2020.

Extension for the year 2021

According to the decision of 5 January 2021, in a statutory regulation that has yet to be made by the Federal Government, each parent is again going to be granted an additional 10 days and each single parent an additional 20 days of child sickness benefit for the year 2021.

In contrast to the previous year, however, according to the wording of the decision of the Minister Presidents’ Conference, child sickness benefit must now also be paid - irrespective of any corona illness of the child - in cases in which care of the child at home becomes necessary because the school or kindergarten or class or group is closed due to the pandemic or because compulsory attendance at lessons has been suspended or access to childcare restricted. In practice, this extension raises the question of how this claim interacts with the employee's claim to compensation under § 56(1)(a) IfSG.

Employees are entitled to compensation in accordance with § 56 (1)(a) IfSG if

• childcare facilities, schools and facilities for persons with disabilities are closed due to official orders imposed to prevent the spread of infections or communicable diseases, if school or company holidays are ordered or extended, or compulsory attendance at a school is lifted
• the employee himself supervises, looks after or cares for his child who has not yet reached the age of twelve or who is disabled (within the meaning of § 2 (1) SGV IX) and dependent on assistance, because he is unable to secure any other reasonable childcare option,

and he suffers a loss of earnings as a result.

Pursuant to § 56 (5) sentence 1, the compensation is to be paid directly by the employer for the first six weeks and thereafter by the competent authority upon application. Employers can have the compensation paid by them reimbursed by the competent authorities or apply to the competent authority for an advance. Compensation for loss of earnings is granted for a maximum of 10 weeks in accordance with § 56 (2) sentence 4 IfSG, and for a maximum of 20 weeks in the case of single parents. It covers 67 percent of the loss of earnings incurred, but up to a maximum of EUR 2,016 per month.

Problem: reasonableness of other childcare options

In practice, it may be difficult to assess whether other reasonable care options exist for employees. The reasonableness always has to be assessed according to the circumstances of the individual case. The Federal Ministry of Health has published a FAQ catalogue containing the most important guidelines for interpreting and determining the reasonableness of care options (see FAQ paragraphs 29 et seqq.).

According to the FAQ presented, in addition to the basic possibility of working from a home office, the number of children to be cared for, their age and any need for care also play an important role. In addition, any existing overtime must be taken and holiday used up, although employees are not obliged to use up their entire annual holiday.

Employees therefore have to carefully check whether reasonable care alternatives are available and, if necessary, employers must also ask their employees about the specific care situation. Pursuant to § 56 (1)(a) sentence 2 IfSG, employees must inform the competent authority and, upon request, their employer of the lack of other care options.

In view of the stringent requirements outlined in the FAQ, a claim to compensation under § 56 (1)(a) IfSG therefore does not exist in all cases. Furthermore, the claim does not exist if there is no loss of earnings or if other payments take the place of earnings. For this reason, it is unlikely that the claim will apply if employees are covered in individual cases by § 616 German Civil Code [Bürgerliches Gesetzbuch - BGB] or § 45 SGB V. The claim under § 45 SGB V is also suspended if the employee is entitled to paid time-off in accordance with § 616 BGB.

In practice, this means that the employer is obliged to ask the employee about the specific care situation. Otherwise, the employer could find itself exposed in future to the risk of not being reimbursed for the compensation claim.  

Outlook

It will be interesting to see to what extent the statutory health insurance institutions will be supported in coping with the additional financial burden, as the financial burden they will have to bear as a result of the regulations announced in the decision does seem to be immense. Furthermore, as regards the extended entitlement to child sickness benefit, it is still unclear exactly how this claim can be asserted. It is also still under discussion whether child sickness benefits should also be granted to privately insured employees. The regulation on extended child sickness benefit might be passed next week, when the Bundestag convenes for the first time this year.

As regards the claim to compensation under § 56 (1)(a) IfSG, it will be interesting to see how long it will still be possible to claim such compensation, as it is (provisionally) limited until 31 March 2021.

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