In Germany, as in many other countries around the world, parents face a dilemma when kindergartens and schools are closed due to corona crisis:
"How do you reconcile the care of children and the pursuit of your profession when both parents are working and cannot work in a home office? Or, if working in the home office with children is just not manageable because of the parent’s type of work, the children’s age or the number of children?
The German legislator has recognized this problem and has attempted to financially relieve parents in this situation. To this end, the Federal Government has added a paragraph 1a to the already existing Section 56 of the Infection Protection Act (hereinafter "IfSG"), which previously provided for compensation claims only for employees placed in quarantine.
> This provides for a right to compensation for working custodians if the following conditions are met:
- The school or childcare facility has been closed by the authorities.
- Closure was based on the IfSG.
- Other reasonable care is not possible (Since grandparents belong to the corona risk group due to their age, there is no need to resort to them.).
- Children have not reached the age of 12 or are disabled and therefore need help.
- The care provided results in a loss of earnings.
- The entitlement exists not only for employees, but for all "working custodians" who care for a child younger than twelve years of age or disabled.
> However, according to the will of the legislator, a claim should not exist if:
- The working custodian has overtime or holiday entitlements from the previous year, and which must be used up first (holiday entitlement for the running year does not have to be used).
- The child can be looked after in the emergency care of the school or kindergarten, which is only the case if both parents work in a system-relevant area (e.g. hospital, doctor's practice, etc.) or in case of a single parent. The specific regulations in this regard vary from federal state to federal state.
- The employed person already receives other subsidies for the time of the necessary childcare, such as sickness benefits, short-time work allowance, child sickness benefit.
- The institution (school / kindergarten) would be closed for holidays anyway.
- Furthermore, a claim might be excluded, if the custodian can work in home office and the use is within reason. This will need to be decided on a case-to-case basis.
> The concrete calculation of the compensation and its payment is carried out by the employer in accordance with section 56 paragraph 5 IfSG for employees:
- The compensation currently amounts to 67% of the loss of earnings and is granted for a maximum of 6 weeks. It is limited to an amount of EUR 2,016.00 for a full month (Section 56, paragraph 2, sentence 3 IfSG).
- The compensation can also be claimed on a weekly or daily basis, depending on the need for care.
The paid out amounts are reimbursed to the employer on application by the competent authority in the respective federal state, including the social security contributions paid by the employer.
In view of the currently unforeseeable period during which attendance of kindergartens and schools will not be possible at all or only to a limited extent and the resulting continuing need for care by one parent, the federal government is currently discussing an extension of the entitlement period (6 weeks to date). An increase in the compensation payment from currently 67% of the loss of earnings to, for example, 77% or 87%, staggered according to the duration of care and in line with the planned changes to the reference values for short-time work compensation under Sections 95 to 109 German Social Security Code No. III (“SGB III”) should also be discussed.
Hamburg, 30 April 2020
About Brödermann Jahn
Brödermann Jahn is a business law firm which provides full service to national and international business clients with a focus on cross-border work (such as advice in trade and company law, IT, data protection, M&A, labor, comparative legal structuring, international litigation and arbitration). The firm considers law as a tool to increase the economic success of its clients and restore balance to their businesses. Clients come first.
Established in 1996 by Eckart Brödermann LL.M. with a background in French, US, German and Chinese law (Harvard ’83, Maître en droit, Paris, professor at the University of Hamburg and a Bar Certified Specialist of International Business Law), the firm has grown to a team of approximately 20 lawyers with in-depth knowledge in over 20 industries ranging from automotive and health to real estate and IT. The firm operates Germany wide and worldwide out of Hamburg, Germany’s largest trading city and port. Clients are situated all over Germany and on all five continents. The firm’s tool-kit includes modern legal tools such as the UNIDROIT Principles of International Commercial Contracts 2016, on which Eckart has written an entire article-by-article commentary (https://www.youtube.com/watch?v=jX0utyTCC5Q).
During the present COVID-19 crisis we work in fully functioning shifts, always half of us from home. We have set up a team pooling the daily input on COVID-19 legal solutions. Pro bono, we have contributed to expert statements of the German Bar to the German legislator on its COVID 19-legislation, or, for example, helped a local cab company to acquire state aid.
Brödermann Jahn is a member of The International Society of Primerus Law Firms.
Prof. Dr. Eckart Brödermann LL.M., Tina Denso LL.M., Dr. Katharina Klingel, Sebastian Kühn
20354 Hamburg, Germany
+49 40 37 09 05 0; cell phone: +126.96.36.199.500 (Eckart)