Employment Law25.11.2020 Newsletter

Corona - new remuneration-relevant regulations in autumn

In the course of the ongoing pandemic, the legislator has adopted further regulations primarily concerning the right to the continued payment of remuneration or compensatory benefits as well as the utilisation of care leave. Here, we are summarising the most important relevant amendments to the Third Civil Protection Act [Drittes Bevölkerungsschutzgesetz], which came into force on 19 November 2020, and the Hospital Future Act [Krankenhauszukunftsgesetz, KHZG], which came into force on 29 October 2020:

Compensation claim for care leave

With the 1st Civil Protection Act, the German Bundestag created in March 2020, at the beginning of the pandemic, through § 56 (1)a German Infection Protection Act [Infektionsschutzgesetz, IfSG], a compensation claim for parents who they have to look after their children themselves due to the closure of schools or childcare facilities and due to the lack of reasonable alternative childcare options and who suffer a loss of earnings as a result of this. This scheme, which was originally only valid until the end of the year, is now being continued until 31 March 2021. At the same time, the new regulation is now also allowing for a corresponding compensation if persons have to care for a person in quarantine.

No compensation claim for travellers returning from foreign risk areas

The right to compensation for a loss of earnings regulated in § 56 (1) sentence 1 IfSG in the event of an isolation order (for quarantine) or a work ban does not apply if the person concerned could have avoided such an order. With the new regulation, the legislator has now expressly stipulated that the compensation claim lapses in particular if the isolation is based on an avoidable trip to a risk area. The concept of risk area is legally defined insofar to the effect that it must be a risk area located abroad. Based on the explanatory memorandum to the draft law, unavoidable travel is only assumed if special and exceptional circumstances arise, such as the birth of one’s own child or the death of a close relative. However, it does not include private or work celebrations, holiday trips or business trips that can be postponed.

This new regulation must also be observed with regard to the claim to the continued payment of wages under § 616 German Civil Code [Bürgerliches Gesetzbuch, BGB]. A claim to the continued payment of remuneration according to § 616 BGB also presupposes that the employee is not at fault, which means that the expressly regulated grounds for an exclusion in § 56 IfSG is of significance when interpreting § 616 BGB.

Amendments to the law on care leave and family care leave

The flexibilisation measures that already entered into force in the German Care Leave Act [Pflegezeitgesetz, PflegeZG] and German Family Care Leave Act [Familienpflegezeitgesetz, FPfZG] are being extended until 31 December 2020. For working and carer relatives, this specifically means a shorter period for notifying the family care leave (10 days before the desired start) as well as the possibility of notifying this by e-mail. In addition, months with a lower income due to the pandemic will not be taken into account if the loan amount is calculated according to the Family Care Leave Act.

Furthermore, employees who have taken or take time off work on grounds of the special regulations on Covid-19 can continue to take advantage of the remaining months of their entitlement to time off work under the Family Care Leave Act and Care Leave Act after these regulations expire.

The minimum weekly working time of 15 hours regulated in § 2 (1) sentence 2 FPfZG may be temporarily undercut, but for a maximum period of one month.

Also extended until 31 December 2020 is the possibility of taking advantage of a short-term incapacity for work of up to 20 working days per acute case if the acute care situation has arisen due to the Covid 19 pandemic. In addition, the care allowance can still be claimed for 20 working days.   

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Jörn Kuhn

Jörn Kuhn

PartnerAttorneySpecialized Attorney for Employment Law

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