What is important for employers

The German law dealing with parental leave for employees has currently been changed. Following the legislative changes, alterations have been introduced regarding children born after July 1, 2015, and their parents. The amendments aim for a more flexible use of parental allowance and parental leave.

However, the legal situation is still quite complex and easy to misapply. As a consequence, the following article highlights the main points relevant for employers:

  1. Entitlement to Parental Leave
  1. Distribution of Parental Leave

In general, employees are still entitled to take parental leave for each child. The parental leave can be taken in the period between the child’s birth and third birthday. Also, this decision is not subject to any approval of the employer.

The major changes in the law only apply to children born after July 1, 2015. Thus, a distinction has to be made between these children and those born before that date (§ 27 Sec. 1 BEEG).

  • Parental leave for children born before June 30, 2015, may – as before – be taken one-sidedly for up to two different periods before the child’s third birthday. Any additional periods are subject to the employer’s approval. This includes a potential transfer of up to 12 months of parental leave to the period between the child’s third and eighth birthday
  • Parental leave for children born after July 1, 2015, can be taken one-sidedly for up to three different periods before the child’s third birthday. Up to 24 months of the parental leave may be transferred – without requiring additional approval of the employer – to the period between the child’s third and the eighth birthday.
  • Parental leave for children born after July 1, 2015, can be taken one-sidedly in the time between the child’s third and the eighth birthday. Employees do not have to specify the exact dates of parental leave by the child’s third birthday. They may rather assert the parental leave for any time in that period. They only have to observe the notice period. Hence, employees can assert parental leave 13 weeks prior to the requested period.

Due to the change in law, employees do not need the employer’s approval in order to split the parental leave periods. Employers may only object to an asserted period of parental leave due to compelling operational reasons. However, employers may only object to a period of parental leave if it is asserted for a period following the child’s third birthday.

  • Notwithstanding the above, employees must specify the exact periods within the first two years of parental leave upon assertion. Employees are bound by their decision in their very first assertion. The requested periods may be changed later, but only with the employer’s consent. If an employee only asserts one year of parental leave upon his or her first assertion, he or she cannot one-sidedly extend that period within the first two years.

Employees are bound by the asserted period of parental leave for the first two years. However, they can assert parental leave for the period after those first two years. In that case, the employer’s approval is not needed for the second assertion.

  1. Assertion of Parental Leave

Parental leave before a child’s third birthday has to be asserted seven weeks before its commencement in writing.

If parental leave is requested for the time between a child’s third and eighth birthday, the notice period is 13 weeks.

If an employee does not comply with those notice periods, the parental leave does not expire but may only start after the respective notice period.

If an employee asserts parental leave and does do so for a third period, the exact dates of the period need to be specified by the time the parental leave is asserted.

If an employee asserts a leave for that third period and that period lies after the child’s third birthday, the employer may object to the assertion. This requires the employer demonstrate compelling operational reasons for the denial of the request. Compelling operational reasons are very rare and have to be absolutely necessary. The requirements for those reasons are to be set very high. As a consequence, employers may hardly ever be able to demonstrate such compelling operational reasons.

Employers have to be prepared for more employees to assert their parental leave for the period between their child’s third and the eighth birthday. Due to the strict requirements in order to demonstrate compelling operational reasons, employers may hardly ever be able to object to the assertion.

  1. Parental Leave after a Change of the Employer

If an employee changes employers, he or she may still assert his or her right of parental leave to the new employer. In that case, the new employer has the right to request a written statement from the employee, in which the former employer certifies the periods of parental leave already taken by the employee.

The transfer of parental leave to the new employment contract is not subject to the new employer’s approval. Thus, employees are entitled to take their remaining parental leave periods in the new employment contract. Employers should keep this in mind when hiring new employees. However, a certificate proving the periods of parental leave already taken must not be requested from employees during application procedures. Employers can only request such certificate by the time the employee asserts parental leave.

Since employers cannot deny the transfer of remaining periods of parental leave, employees are entitled to transfer the remaining periods of parental leave to the new employment contract. Employers are not allowed to ask questions about parental leave during application procedures.

  1. Part-Time Employment during Parental Leave

The right to part-time employment during parental leave generally remains unchanged. Employees have the right to part-time employment provided the employment contract endured for at least six months and the employer employs more than 15 employees. The working hours during part-time employment should be between 15 and 30 hours per week.

Employees have to assert the right to part-time employment to employers in writing. For periods after the child’s third birthday, the notice period is 13 weeks prior to the respective start of the part-time employment. If the part-time employment is asserted for the period before the child’s third birthday, the notice period is seven weeks prior to the respective start. The employer may only object to the asserted part-time employment if it can demonstrate compelling operational reasons.

If the employer wants to deny an employee’s request for part-time employment, this has to be done in writing and has to meet the respective deadline. The deadlines vary, depending on the period the employee requests part-time employment. If an employee requests part-time employment for:

  • a period before the child’s third birthday, the deadline to object is four weeks;
  • a period after the child’s third birthday, the deadline to object is eight weeks.

If the employer fails to meet the respective deadline, the approval shall be deemed to have been granted.  The employee is entitled to file a suit at the labor court to contest the employer’s objection to the assertion of part-time employment.

Employers have to be aware that their approval shall be deemed to have been granted unless they object to the employee’s assertion in writing within the legal time limit. This assumed approval concerns the period as well as the extent of the asserted part-time employment.

In view of the current case law, it is not clear to which extent the employer has to justify its objection. In order to minimize litigation risks, employers should therefore inform the employee as precisely as possible about the reasons underlying the objection.

  1. Parental Leave for Grandparents

Another change in the law allows grandparents to take parental leave. However, they can only do so if a number of requirements are met. These include:

  • They need to live in the same household with their grandchild and
  • Need to parent and supervise the grandchild on their own. In addition,
  • One of the child’s parents has to be under age or has to undergo vocational training, that had been started before the parent turned 18 and that occupies the parent’s full work capacity.
  • Finally, no parent of the child must be making use of the parental leave on his or her own.
  1. Special Protection Against Dismissal

Prior to the legislative changes, employees taking parental leave were subject to special protection against dismissal for the time of their leave. In addition, protection started, in accordance with the notice period, eight weeks before the asserted parental leave period. Consequently, the protection against dismissal was adjusted to correspond with the new notice periods. If an employee wants to take parental leave for the time after the child’s third birthday, he or she now is protected against dismissal up to 14 weeks in advance.

Furthermore, employees are protected against dismissal during their part-time employment if they are eligible to parental allowance (Elterngeld) even in case they did not take parental leave. Hence, with regard to a possible special unfair dismissal protection, employers do have to be careful about the employee’s eligibility for parental allowance if those work in part-time employment, even though the employee is not actively asserting this right. This protection is not effective in case employees are only eligible to the new parental allowance “Plus” (ElterngeldPlus).

If the employee is working part-time and is eligible to obtain parental allowance, the employee is still subject to the special protection against dismissal, although not making use of the right to parental leave!

  1. Summary

Legislative changes are leading to a more flexible use of parental leave by employees.

The possibility of transferring vast periods of parental leave into the time following the third birthday of the child causes a certain amount of uncertainty for the employer’s organization of its workforce.

Additionally, the legal provisions on parental leave have made this topic even more complex. The provisions have become even more opaque. This increases the employer’s, but also the employee’s, need to analyze legal questions related to parental allowance and parental leave in order to guarantee a certain degree of planning security for the employers. The analysis is also key to an adequate organization of employees and workforce.