I. Introduction
Both the Caregiver Leave Act and the Family Caregiver Leave Act pursue the goal of promoting the reconciliation of family and home care in order to be able to counteract demographic change in society.
Both laws have also been amended, which makes it necessary to examine the relationship between the two laws and also the connection to § 616 BGB.
II. Concept of the need for care within the meaning of § 14 SGB XI
Persons who fulfill the requirements of §§ 14, 15 SGB XI are in need of care within the meaning of the PflegeZG. For the application of § 2 PflegeZG, it is also sufficient if fulfillment is likely, § 7 IV PflegeZG.
According to the legal definition in § 14 I SGB XI, persons in need of care are those who, for health reasons, show impairments to their independence or abilities and therefore require the help of others.
With this definition, the legislature has set clear standards from January 2017 under which a need for care can be assumed.
Classifications based on other laws cannot be transferred and do not allow any concrete conclusions to be drawn about the need for care within the meaning of the SGB XI.
In the new version, an independent point system can be derived from §§ 14, 15 SGB XI in conjunction with Annexes 1 and 2, on the basis of which a classification into five care levels is then carried out. Section 14 II SGB XI applies to adult care recipients. In the following, points are distributed and used to determine which services can be obtained.[4]
III. Relationship to Section 616 I BGB
Section 2 III PflegeZG standardizes an obligation of the employer to continue to pay remuneration during a short-term absence from work, which lasts a maximum of 10 days, only if an agreement on continued payment exists or if this arises from statutory provisions. However, the PflegeZG itself does not regulate any claims for remuneration.
The reference to other statutory provisions takes the form of a legal basis reference. For the employee, Section 616 I BGB in particular comes into consideration. Therefore, for the affirmation of a remuneration obligation, the conditions of Section 616 I BGB must be met.
The employee does not lose his or her claim to remuneration under this provision if he or she is prevented from working for a relatively insignificant period of time through no fault of his or her own for reasons related to his or her person.
The question is whether, based on the wording, this also includes caring for a relative in need of care. The care of close relatives is recognized.
The term "relative" as defined in the Pflegezeitgesetz (PflegeZG German Caregiver Leave Act; § 7 III PflegeZG), does not correspond to the term "relative" as defined in § 616 I BGB.
Section 7 III PflegeZG explicitly names the cases in which the status of relative is affirmed.
According to the case law on § 616 I BGB, close relatives are only spouses, registered partners, children, siblings or parents who require care. [7] Thus, there are considerably fewer cases covered than in the comprehensive list in § 7 III PflegeZG.
The nature of § 616 I BGB as an exception to the principle of no work no pay suggests that case law will continue to not transfer the concept of relatives in the Care Leave Act in the future. In addition, the period of incapacity to work would have to be relatively insignificant according to § 616 I BGB. In the case of caring for children, it is recognized that it must be less than 10 days; a benchmark of approximately 5 days applies here. [8] If the period is exceeded, there may be a retroactive loss of the entitlement to continued remuneration according to § 616 I BGB. [9]
If the care according to § 2 PflegeZG lasts longer than 5 days, there is no entitlement to remuneration in the absence of the requirements of § 616 I BGB.
If the beneficiary asserts his full right to exemption in this case, he loses his entitlement to continued remuneration under §616 BGB completely.
In addition, according to established case law, it is possible to waive Section 616 I BGB, both individually and collectively. This waiver could be contrary to § 8 PflegeZG, which stipulates a prohibition of deviation to the detriment of the employee. However, § 8 PflegeZG only applies to deviations from the standards of the PflegeZG and cannot be applied to § 616 I BGB.
It should be noted that the inadequate regulations regarding remuneration when the short-term absence from work is claimed have led to different solutions being applied in practice. In some cases, remuneration continues to be paid even though there is no longer any obligation to do so; in other cases, no remuneration is paid at all from the outset.
If you choose to exclude § 616 I BGB from your employment contract, the only recourse you have is to the standard of § 44 a SGB XI (care support allowance).[13] A claim to long-term care support benefit exists only if there is no claim to continued remuneration against the employer (Bundestag printed paper 18/3124, 47). [14]
IV. Relationship between the provisions of the Care Leave Act and the Family Care Leave Act
Previously, the Family Care Leave Act did not provide for a legal entitlement to family care leave. Since the revision (December 23, 2014), such an entitlement has been explicitly standardized.
In a legislative reform that took effect on January 1, 2015, the PflegeZG was also expanded to include two new types of leave. Since then, employees have also been able to request time off to care for minor close relatives in need of care (care of minors) and for terminal care of an incurably ill close relative in the last phase of life, Section 3 V and VI PflegeZG.
The personal scope of application of both laws is identical due to the reference in § 2 III FPfZG. Both entitlements also exist from the beginning of the employment relationship. There is no statutory waiting period.[17]
According to § 4 I 1 PflegeZG, the entitlement under the Care Leave Act exists for a period of up to 6 months. In addition, there is an entitlement to family care leave for up to 24 months, § 2 I FPfZG. The permissible total duration when combining care time and family care time is 24 months. This maximum duration is restricted to a specific relative in need of care. If another relative becomes in need of care, the caregiver may provide care for that relative immediately, even after the 24-month period has ended.[18]
If the announcement of whether care time or family care time will be taken is not clear and the requirements for both claims are met, then according to the doubt rule of § 3 III 3-6 PflegeZG, the assumption is that care time will be taken. If the rights to both care time and family care time are to be asserted at the same time, longer notice periods must be adhered to.
Section 3 III S.4 PflegeZG stipulates that if the family care period or the leave according to Section 2 V FPfZG follows the care period according to Section 3 I PflegeZG, an interruption is also possible. In this case, the notice period is three months after § 3 III 5 PflegeZG.
Conversely, if an employee wishes to claim family care time or care time after a period of leave, this must be announced at least eight weeks in advance in accordance with § 3 VI PflegeZG.
In addition, the family care time must be taken without interruption and may not be reduced to less than 15 hours of work per week.[20]
The caregiver leave can only be claimed from an employer who employs at least 16 people, § 3 I 2 PflegeZG. The entitlement to family care time sets even higher requirements and demands at least 26 employees according to § 2 I 4 FPfZG.
The combination of a minor care according to § 3 V PflegeZG with a family care time iSV § 2 I FPfZG as well as with a minor care iSv § 2 V FPfZG is permissible.
An additional entitlement for the care of sick children is § 45 SGB V. According to this, insured persons are entitled to sickness benefit if a medical certificate confirms that it is necessary for them to be absent from work in order to supervise, care for or nurse their sick and insured child, if no other person living in their household is able to supervise, and the child is under twelve years of age or is disabled and requires assistance.
This entitlement cannot be contractually waived, § 45 III SGB V.
[1] Reasoning: RegierungsE BR-Drucksache 718/07; Grundmann: Das Pflegezeitgesetz in GuP 2013, 100.
[2] Grobys/Panzer-Heemeier, Stichwort Kommentar Arbeitsrecht, Pflegezeit, Rn. 4.
[3] BeckOK SozR/Pfitzner SGB XI § 14 Rn. 9-10.
[4] BeckOK SozR/Pfitzner SGB XI § 14 Rn. 11-16.
[5] BR-Drucksache 718/2/07.
[6] Preis, Nehring: The Nursing Care Leave Act in NZA 2008, 729.
[7] BAG, July 20, 1977 - 5 AZR 325/76, AP No. 47 re: 616 BGB; BAG, April 19, 1978 - 5 AZR 834/76; further evidence in: Grundmann: The Nursing Care Act in GuP 2013, 100.
[8] BAG, April 19, 1978, - 5 AZR 834/76, AP No. 48 to § 616 BGB.
[9] Grundmann: The Caregiver Leave Act in GuP 2013, 100.
[10] Grundmann: The Nursing Care Leave Act in GuP 2013, 100.
[11] Feichtinger/Malkmus, Entgeltfortzahlungsrecht, BGB § 616 Rn. 69.
[12] Grundmann: The Nursing Care Leave Act in GuP 2013, 100.
[13] ErfK/Preis BGB § 616, Rn. 8-9.
[14] Grobys/Panzer-Heemeier, StichwortKommentar Arbeitsrecht, Pflegezeit Rn. 11.
[15] Küttner, Personalbuch, 24th edition 2017, paras. 44-45.
[16] Grobys/Panzer-Heemeier, Stichwort Kommentar Arbeitsrecht, Pflegezeit Rn. 1.
[17] Küttner, Personnel Manual, 12th ed. 2017, Family Care Leave, paras. 44-45; Schaub, Labor Law Handbook, Linck, 17th ed. 2017, para. 66.
[18] MAH ArbR, Part F. Leave, §28 Maternity Leave, Parental Leave, Care and Family Care Leave, Rn.70.
[19] Nomos- BR/ Böhm PflegeZG/ Annett Böhm PflegeZG §3 Rn.22.
[20] Schaub/ Koch ArbR A-Z, Familienpflegezeit.
[21] Schaub, Arbeitsrecht- Handbuch, Linck, 17th edition 2017, para. 66.
[22] NK-ArbR/Stefan Müller PflegeZG § 3 Rn. 61-66.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.