Change of law: Right to compensation for necessary childcare

On March 25, 2020, the German Parliament (“Bundestag”) passed the “Act on the Protection of the Population in the Event of an Epidemic Situation of National Importance” and, after the approval of the German Federal Council (“Bundesrat”) on March 27, 2020, it entered into force on March 30, 2020.

The amended law contains numerous important changes, including the introduction of a compensation claim for parents who have to devote themselves to childcare due to the closure of schools or childcare facilities and who suffer loss of earnings as a result (Sec. 616 of the German Civil Code does not apply).

This claim is grounded in the newly created paragraph 1a of sec. 56 of the Protection against Infection Act (IfSG) and is linked to the following conditions:

• The closure of the schools and other care facilities must be based on an official order, which in turn is based on the Protection against Infection Act, i.e. is intended to prevent infections.
• The beneficiary must be employed and have custody of at least one child under 12 or a disabled child.
• In addition, the beneficiary must provide childcare on his or her own, as there are no other reasonable childcare facilities available. Persons, who belong to a risk group, i.e. grandparents in particular, are excluded as reasonable childcare options. This circumstance must be presented to the competent authority and, if requested by the employer, to the employer as well.
• This must result in a loss of earnings for the beneficiary.

It should be noted that a claim for compensation exists only for those periods during which the schools or childcare facilities would normally provide childcare. Accordingly, there is no entitlement for childcare during school holidays.

As with the introduction of short-time work, the first priority is to reduce any overtime and, as far as possible, to perform work from home. Using up remaining paid leave days is not required.

If the aforementioned conditions are met, there is an entitlement to compensation for the loss of earnings from the government. This is limited to 67% of the current net salary or EUR 2,016.00 per month and can be granted for a maximum period of six weeks.

The claim must be asserted against the “competent state authority”, i.e. regularly against the local health authority. Apparently, the authorities do not yet have the appropriate forms available at the moment. Therefore, the application should be submitted in writing to the respective office of the health authority, stating that the conditions are met, giving the name of the employer and the amount of the loss of earnings.