Leave of absence: Inability to work, sick child and entitlement

What is an exemption?

An employee exemption is given if the employer releases an employee from his or her duty to perform despite an existing employment relationship. Instead of a leave of absence, one also speaks of a leave of absence or suspension.
A leave of absence can take place unpaid, but also with continued payment of the usual remuneration. The paid leave of absence includes, among other things, vacation leave and educational leave. In addition, according to Section 616 of the German Civil Code (BGB), employees have a legal right to paid leave for a short time if they are prevented from performing work for personal reasons through no fault of their own.

When is an inability to work for personal reasons?

The prerequisite for an exemption according to § 616 BGB is that you are prevented from performing your work for the entire duration of your normal working hours due to a reason relating to yourself or to your personal circumstances. These reasons include extraordinary family events such as weddings, deaths, a serious illness of close relatives or - which often happens - the care of a sick child who is not yet twelve years old.

Paid time off for a visit to the doctor can only be considered if it has to be done during your working hours. According to Section 616 of the German Civil Code (BGB), you are also entitled to paid leave for a “short period” if you have an interview or a similar appointment during your working hours as part of your job search.

The term “short time” is not legally defined. However, in many collective agreements it is specifically regulated which period of time is to be understood by this. The duration of employment is often used as a basis. For example, if you have been with the company for up to six months, three days are regarded as a “short time”, if you have been employed for twelve months one week, and if you have been employed for a longer period two weeks.

In the case of caring for a sick child, according to the case law according to § 616 BGB, paid leave of up to five days is to be granted. Subsequent to this, claims against the statutory health insurance may arise in accordance with Section 45 SGB V.

When does the health insurance have to pay for the care of the sick child?

If your child is ill for more than five days and there is no one in your household who can look after them while you are away, you are entitled to unpaid leave. At the same time, the statutory health insurance has to pay you a long-term care sickness benefit, which is intended to replace the salary that you missed because of caring for the child. Each child is entitled to long-term care sickness benefit for a maximum of 10 working days (20 working days for single parents). If there are several children, the sickness benefit can be claimed for a maximum of 25 working days (for single parents 50 working days).

Who is entitled to an unpaid leave of absence?

Apart from the aforementioned case of unpaid leave in connection with an entitlement to long-term care sickness benefit, you generally have no legal right to unpaid »time out«. However, employee exemptions can be regulated in individual contracts as well as in collective agreements or works agreements. Otherwise, in a specific case, you can only try to agree an unpaid leave of absence with your boss.

When can the boss suspend you?

The suspension of an employee is only permitted in exceptional cases. This would be the case, for example, if an employee is to be given extraordinary notice because of serious misconduct - such as a physical attack on his superior - and the works council has to be heard beforehand. The employee concerned could then be "on leave" or suspended until the notice of termination is given.

Exemption - important judgments

Exemption for language course
According to the educational leave laws of the federal states, employees are entitled to paid time off, provided the educational measure maintains, improves or extends their professional mobility within the company.
BAG, 18. S. 1999 - AZ: 9 AZR 381/98

Continued payment of wages when visiting the doctor
If an employee is ill and unable to work at the start of work and therefore has to see a doctor, he is not entitled to paid leave in accordance with Section 616 of the German Civil Code (BGB). Instead, he has claims under the Continued Wage Payment Act. An exemption presupposes, conceptually, that the employee is obliged to perform work and is therefore not sick and unable to work.
BAG, March 7, 1990 - AZ: S AZR 189/89

Entitlement to unpaid leave
The right to unpaid leave of absence of an employee can result from the employer's duty of care, provided that special circumstances in the circumstances of the employee exist and important operational interests do not preclude the leave of absence. This can be the case, for example, if an employee elected as a delegate only takes place every four years
attends the day.
LAG Cologne, 11.1.199 - AZ: 8 Sa 1020/89

Refusal to work due to sick child
If a child falls ill, an employee is entitled to time off from work. This applies for the duration of his entitlement to long-term care sickness benefit in accordance with Section 45 SGB V. If the employer unjustifiably refuses this entitlement, the employee has the right to stay away from work without authorization. A termination without notice given in this case is ineffective.
LAG Cologne - AZ: 7 Sa 690193

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