Nursing leave (time off)

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This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

The nursing time to workers permit, for a limited time from work release to let or part-time work to members to maintain, without jeopardizing the workplace. In Germany, employees who want to care for a close relative have, under certain conditions, a legal claim against their employer since July 1, 2008 under the Care Leave Act (PflegeZG),

  1. absent from work for up to ten days and
  2. to be released from work for up to six months of care leave .

This should open up the possibility of caring for close relatives in need of care in a home environment. This will contribute to better employment and family care reconcile to.

Since January 1, 2015, according to Section 44a, Paragraph 3 of Book XI of the Social Code, during the short-term absence from work according to Section 2 of the PflegeZG, there has been an entitlement to a compensation payment financed from the care insurance in the amount of 90% of the net wage (care support allowance).

Release in the event of short-term inability to work

claim

Employees , trainees and home workers (employees) have the right to stay away from work for up to ten working days in order to organize needs-based care for a close relative in an acute care situation or to ensure immediate nursing care for the affected relatives themselves.

The right to stay away from work is limited to acute cases and can only be exercised if there is a need for nursing care in the specific case. As a rule, this will only be the case once for each relative in need of care , so that this right is only exercised once per care case.

The entitlement exists regardless of the number of employees working for the employer, i.e. also in small businesses.

Close relatives

Close relatives of the employee are (exclusively) the employee

Notification and proof of obligation

The employee must immediately notify the employer of his inability to perform work and its expected duration. Upon request, the employer must also be presented with a medical certificate stating the need for care of the close relative and the necessity of the acute measures.

Compensation for downtime

The PflegeZG does not grant the employee any entitlement to continued payment of wages during the times mentioned. In the case of short-term inability to work, a claim for remuneration can arise from Section 616 of the German Civil Code (BGB) or from the employment contract or a collective agreement .

Care support allowance

According to Section 44a, Paragraph 3 of Book XI of the Social Code, employees can receive care support allowance for a total of up to ten working days from the care fund of the person in need of care for the period of the short-term absence from work .

The (gross) care support allowance is 90% of the net wages lost during the time off. If the employee has received one-time payments subject to contributions in the last 12 months before the leave of absence within the meaning of Section 23a of Book IV of the Social Code , the care support allowance is 100% of the net wages lost during the leave of absence, regardless of how high the one-off payments were. The calendar-day care support allowance must not exceed 70% of the calendar-day income threshold for health insurance.

While the care benefit allowance is being drawn, the insured person is or remains insured for health, care, pension and unemployment. The corresponding contributions are withheld from the care support allowance.

There is no entitlement to care support allowance if the employer continues to pay the wages or if the employee can claim child sickness allowance from his health insurance company in accordance with Section 45 of Book V of the Social Code or from his accident insurance institution in accordance with Section 45 (4) of Book VII of the Social Code .

The care support allowance must be applied for immediately from the care fund of the person in need of care.

Care time

claim

In order to take care of a close relative in need of care (see above) in the home environment for a longer period of time, employees can take care of a maximum of six months. The employee has to take care of the care himself, which does not exclude the partial use of outpatient care. The employer must release the employee from work during the care leave. There is a legal right to the care leave . Employees can choose between full and partial time off from work. However, the employer can refuse only partial exemption, which means part-time employment during care leave, if this is justified by conflicting, urgent operational issues.

Anyone wishing to continue working part-time during caregiver leave must make a written agreement with their employer on the reduction and distribution of working hours. In doing so, the employer must comply with the wishes of the employees, unless there are urgent operational issues to the contrary.

It is not permitted to divide the care period over several periods of time between which there is an interruption. The entitlement to care leave also expires with the first use if the care leave taken falls below the maximum duration of six months.

Notification and obligation to provide evidence

The employer must be notified in writing of the use of the care leave no later than ten days before it begins. At the same time, it must be explained for how long care leave is to be taken. If only partial leave is used, the desired distribution of working hours must also be specified.

If the employee has made use of the nursing leave by declaring this to the employer, he is prevented from making use of his right again, provided that the nursing leave relates to the same relative (one-off arrangement right).

The need for care of the close relative must be proven by submitting a certificate from the long-term care insurance fund or the medical service of the health insurance (MDK). Corresponding evidence must be provided for those in need of long-term care who are insured under compulsory private long-term care insurance.

No entitlement to care leave in small businesses

The right to care leave only applies to employers who regularly have at least 16 employees. It only depends on the head count, which means that part-time employees are fully counted. Trainees are also to be counted .

Premature termination of care leave

If the close relative is no longer in need of care or if home care for the close relative is impossible or unreasonable for the employee, for example because the person in need of care dies or is admitted to a care home , the care period ends four weeks after the changed circumstances. In other cases, it is not possible to end the care leave early.

No remuneration for care leave

The employer must release the employee from work for the duration of the care leave. As a result, the employee is generally not entitled to remuneration if he or she is completely released from work. There is no social benefit comparable to parental allowance during the care leave. The person in need of care can, however, leave the care allowance from the care fund to the caregiver .

Consequence for social security

Because the entitlement to remuneration no longer applies, health and long-term care insurance cover no longer applies due to the employee status. Married or partnered employees may have family insurance . If this is not the case, the employee can only obtain insurance cover through voluntary health insurance membership. To this end, the long-term care fund pays a contribution subsidy equal to the minimum contribution to health and long-term care insurance. Insurance in unemployment is ensured by the care fund during the maintenance period, as long as conditions are met.

Unemployment benefit is generally possible during care leave , even though the employment relationship is only dormant and not ended. However, the caregiver must strive to end his unemployment and he Agency has the mediation efforts of Labor are available . As a rule, these prerequisites should not be met in addition to the time required for care, because with the care leave the carer wants to avoid the stress of employment.

It is also possible to receive unemployment benefit II during care leave. However, when caring for a person in need of long-term care, it is expected that (part-time) employment will be taken up. In the opinion of the Federal Employment Agency, exercising (part-time) employment is particularly reasonable if another person takes care of the leave and care at home is ensured in this way.

Special protection against dismissal

Employees who, on the basis of the Nursing Leave Act, take leave of absence in the event of a short-term inability to work or who have announced that they will take leave or care leave, the employer may from the time of the announcement, but no more than 12 weeks before the announced start until the end of the leave or not properly terminate the care leave. In special cases, the competent authority under state law can issue a special permit. ( Section 5 PflegeZG)

backgrounds

Similar to parental leave for bringing up children, care leave should allow time to be taken for family-related activities while maintaining a legal right to continued employment after the end of care leave. The possibility of a one-time extension for a maximum of a further six months is or was also up for discussion. The time limit is to ensure that the care provided by family members of the care provided by professional nurses or nursing homes rather than replacing the acute care or illness or even of life care is reserved. The care period should be limited to those in need of care (at least care level I ). Originally it was planned that at least six months of service should be a prerequisite and that the employer could have refused the care leave for urgent operational reasons.

According to experts from the federal government, the introduction of care leave should reduce the burden on long-term care insurance, since the payments for home care are lower than for inpatient care.

The concept was developed on the basis of proposals from the Social Association of Germany (SoVD), which aimed at a better balance between work and care . The concept was already discussed in summer 2006 in the context of the planned care reform. A similar initiative was submitted to the Federal Council on July 7, 2006 as a Saarland resolution.

The legal basis for an unpaid six-month leave for care and a short-term leave of up to ten days for emergency situations were finally created through the adoption of the Care Leave Act as part of the Care Development Act.

Nursing leave for civil servants

The Care Leave Act does not apply to civil servants (as well as judges and soldiers). Rather, the civil service regulations apply to civil servants. According to the Civil Service Act applicable to them, civil servants can be exempted from work for a maximum of 15 years without pay to care for a relative. You can also work part-time for up to half of the regular working hours to care for a relative according to a medical opinion (cf. e.g. § 92 BBG , § 28 Paragraph 5 SG ).

For civil servants in the state of North Rhine-Westphalia, the Care Leave Act has been applied mutatis mutandis since January 2012 due to a reference in the NRW Leave and Leave Ordinance. Civil servants in North Rhine-Westphalia who are exempted from caring for relatives are still entitled to subsidies for up to three years .

For civil servants in the state of Rhineland-Palatinate, the Care Leave Act applies due to a reference in the Holiday Ordinance (UrlVO). The amount of vacation is limited to 9 days; Section 31 (3) No. 7 UrlVO-RP.

See also

literature

  • Ulrich Preis / Linda Nehring: The Care Leave Act ; New Journal for Labor Law (NZA) 2008, 729
  • Jutta Schwerdle: Time off work when caring for close relatives - protection against dismissal even during the probationary period? , Zeitschrift für Tarifrecht (ZTR) 2007, 655

Web links

Individual evidence

  1. ↑ Law on care leave ( Pflegezeitgesetz - PflegeZG) = Article 3 of the law on the structural development of long-term care insurance ( Federal Law Gazette 2008 I p. 874, 896 )
  2. ↑ Ten-day time-out for acute care introduced. Bundestag, December 4, 2014, accessed on December 6, 2014 .
  3. ↑ See the explanatory memorandum to Section 2 (1) PflegeZG, Bundestag-Drucksache 16/7439 , p. 97.
  4. ^ Federal Labor Court , judgment of November 15, 2011, Az. 9 AZR 348/10, full text
  5. ^ BAG, judgment of November 15, 2011, Az. 9 AZR 348/10, full text
  6. ↑ Argument: There is no regulation corresponding to Section 23 (1) sentence 4 KSchG
  7. ↑ Technical information from the Federal Employment Agency ( Memento of the original dated December 2, 2010 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. on § 10 SGB ​​II , No. 2.5, p. 6 @1@ 2Template: Webachiv / IABot / www.arbeitsagentur.de
  8. ↑ a b Federal government is apparently planning nursing leave ( memento of the original from September 27, 2007 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , ZDFheute, November 5, 2006 (accessed November 9, 2006) @1@ 2Template: Webachiv / IABot / www.heute.de
  9. ↑ a b Time out for care leave , n-tv, November 5, 2006 (accessed November 9, 2006)
  10. ^ Draft law by the Social Association Germany (SoVD) for a care law , June 12, 2006 (accessed on November 9, 2006)
  11. ↑ SoVD presents a draft of a law on care leave ( memento of the original of September 27, 2007 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , SoVD, June 12, 2006 (accessed November 9, 2006) @1@ 2Template: Webachiv / IABot / www.wernerschell.de
  12. ^ Legal entitlement to care leave , n-tv, August 19, 2006 (accessed November 9, 2006)
  13. ↑ SoVD welcomes Saarland's initiative on care leave , SoVD, July 7, 2006 (accessed on November 9, 2006)
  14. ↑ BDr 16/10591