Still No James Bond at the Movies and No End to Lockdown for Working Parents
My name is not James Bond, but Schmid, Erik Schmid. I am not a double zero agent and do not have the license to kill, if I had it I would not be allowed to write about it. But I am a triple father and licensed to practice law. My car is not armored as is customary for 007. It cannot drive under water, it is rather drinks that are emptied in the back seat of my car. There are no weapons hidden in the seats but Lego and Playmobil figures. In my car there is no ejector seat on which a Bond girl (90-60-90) sits, but there are child seats in which two "Schmid girlies" (8 months, 3 years) romp about. I do not drink vodka martinis neither shaken nor stirred. So I am probably not in a position to save the world in a dinner jacket, but I am well able to present the special features of labour law for employees with children to care for through the glasses of a father and a lawyer in the context of the extension of the lockdown.
The lockdown has been extended (for now) until the end of January 2021. This leads to the extension but also to the tightening of the previous measures:
Current decision on the extension of the corona-related measures
- Extension of the restrictions in place until 10 January 2021 until 31 January 2021. This also includes the restrictions on school and day care operations.
- Intensification of the contact restrictions in the private sphere to a maximum of one person not living in one's own household.
- Extension of measures (e.g. 15 kilometre radius around own place of residence) in case of a very high incidence value of 200 and above.
The corona pandemic and the measures are thus also (very) challenging for working parents in 2021, and for their employers as well. The new James Bond will not be in the cinemas any time soon, the next few weeks will instead be dominated by the following:
No Statutory Entitlement to Working in a Home Office in order to Look after Children during School and Day Care Closures
There is (still) no legal entitlement to work from home, regardless of any reason. An entitlement to home office can only arise from the employment contract, a company agreement or a collective agreement.
Symptoms of Illness among Colleagues: No Right to Refuse Performance
There is no right of employees not to attend the workplace for fear of contracting an illness, e.g. even corona, and thus to refuse to perform work. This applies in particular if a hygiene concept is implemented at the workplace.
Right to Refuse Performance in Case of Child Care
A right to refuse to perform work without sanction and, of course, without entitlement to remuneration may exist if the performance of the service obligation under the employment contract is unreasonable (section 275 (3) German Civil Code). Such an unreasonable hardship may exist if the necessary care of a child cannot be ensured in any other way when school and day care centres are closed. In particular, care must also not be possible elsewhere, e.g. by the other spouse, by neighbours, by a "babysitter" or emergency care.
Basically no "Claim for Compensation Substitute"
In principle, there is no entitlement to compensation substitute for the care of a child during school and day care centre closures. As the schools and day care centres are not only closed for a short period of time and there is a need for care for several weeks, the claim for continued payment of wages according to section 616 BGB does not apply. There is also no entitlement to sick pay in case of illness of the child (child care sick pay) during school and day care centre closures, as the child to be cared for does not have to be looked after at home due to illness.
Extension of the Number of So-Called "Child Sick Days"
The German federal and state governments decided on 5 January 2021 to extend the child sickness benefit. It is to be regulated by law that child sickness benefit will be granted for ten additional days per parent (20 additional days for single parents) in 2021. This doubles the number of days. The entitlement is not only to apply to actual illnesses of children, but also to cases in which care of the child at home becomes necessary because, for instance, the school or kindergarten is closed, access to childcare has been restricted or the child is in quarantine due to corona.
Employees' Compensation for Childcare during Lockdown
Employees are entitled to compensation under section 56(1a) German Infection Protection Act (IfSG) if they have to look after their own children during a school or day care centre lockdown. This compensation provision has been extended until 31 March 2021 and expanded to the effect that if a child is quarantined, compensation can also be paid.
Employees receive compensation for loss of earnings in the amount of 67 per cent of their net income, limited to a maximum monthly amount of EUR 2,016.00, in accordance with section 56(1a) IfSG. This entitlement exists for a maximum of ten weeks per parent. Single parents are entitled to up to 20 weeks. Employers must pay out the compensation for a maximum of six weeks and can have this compensation reimbursed by the competent authority.
Warm (labour law) greetings from Munich and let's look forward to "No Time to Die" hopefully soon in the movies.