When day care centres are closed due to coronavirus – what applies to employees taking care of their relatives?

As far as working parents are concerned, the legislature reacted quickly and responded to the closing of schools throughout the country with a revision of s56(1)(a) of the German Protection Against Infection Act (Infektionsschutzgesetz – InfSchG). This provision does not, however, solve the problems of workers who look after their dependent parents themselves and take them to day care facilities during the day. Nor does it solve the issue of foreign carers no longer being allowed to enter Germany due to the current entry restrictions and relatives having to provide care at home.

It is often hard to reconcile working and taking care of relatives. This places emotional and often financial strain on the individuals concerned, for it is is not yet clear who will pay for financial losses of employees being temporarily unable to work because they take care of their relatives. Employers are faced with the question of how long employees must be released from their work duties on full pay.

The German Home Care Leave Act (Pflegezeitgesetz – PflegeZG) will apply only in rare cases because this Act provides for paid leave (see s2 PflegeZG) only in a sudden situation, i.e. an unexpected and unforeseeable need of care and attention. Whether the current situation falls under that provision is doubtful. Moreover, the right to being released from work duties is limited to a period of ten days and will therefore not be a permanent solution to the current situation.

Once again the discussion about the possible duration of a paid leave thus shifts to s616 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) with its countless decisions on individual cases. However, this provision cannot be the solution here either: The duration of school and kindergarten closures, just like the expected duration of the closure of day care facilities or the lack of care workers, exceeds the periods to which s616 BGB applies. Only a few days can be bridged by this regulation. So even if you take generous decisions allowing up to ten days' leave, you will not get very far with that. The legal consequence of exceeding the permissible period is that there will be no entitlement to continued payment of the remuneration with retroactive effect from the first day. This is precisely why the legislature has reacted so quickly to the closure of schools and kindergartens.

There is a lack of clear regulations with regard to nursing care, especially when it comes to longer periods of time. Because of the clear wording of the new regulation for school and kindergarten closures ("facilities for the care of children or schools"..."children who have not yet reached the age of 12"), it is impossible to apply this provision mutatis mutandis.

Practical advice:

As long as there is no rection of the the legislature, employers and employees will therefore have cover the times of care for relatives by reducing overtime hours, by taking holidays or unpaid leave if there is no situation as provided for in s2 PflegeZG. It is to be hoped that the legislature will offer a solution similar to that for the closure of schools which will relieve the financial burden on relatives without passing the costs on to the employer.

^{Note: This contribution has been published in a similar form at Beck-online.}

Martin Biebl