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In times of the Corona crisis, the care of children and adolescents is a problem that can hardly be overcome for many parents. If daycare centers, kindergartens and schools are closed, one often cannot meet the completely excessive and formulaic requirements for special care and must “somehow – cost it what it may ”manage it yourself. But what is the legal situation? Our expert, the Wasserburg lawyer Stefan Theurer:
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1. Does the duty to work exist despite the need for care?
It is of course completely undisputed that the employee is allowed to fulfill his duty of care when there is a need for care because of the illness of a child or because of the daycare, kindergarten and school closings and is therefore released from work. This follows from Section 275 Paragraph 3 BGB. Incidentally, only those children who have not yet reached the age of twelve are generally in need of care (Section 45 Paragraph 1 Sentence 1, Paragraph 4 Sentence 1 SGB V).
2. Am I entitled to continued payment if my child falls ill with Corona?
In principle, the sick child carers have a claim to continued payment in accordance with § 616 BGB. The hospitalization in the context of the illness will certainly last less than ten days, so that it is a prevention of “not significant time”. As shown in the previous articles, this claim can be waived both in collective agreements (e.g. in collective agreements), but also in individual contracts, even in general terms and conditions within the limits of § 307 Paragraph 1, Paragraph 2 No. 1 BGB . Then there is only an entitlement to sick pay according to § 45 SGB V under consideration – if the days are used up, it remains in the event of loss of wages.
3. What about closings (“lockdown”)?
However, if the care facilities are officially closed, there is probably no “personal” reason in the sense of § 616 BGB; in any case, the criterion of “not significant time” (= ten days at the most) will not be fulfilled. However, a change in the law dated March 30, 2020 remedied this case. Section 56 of the Infection Protection Act now provides under Paragraph 1a that a claim for compensation also exists if an employed person has lost earnings due to such closures, or children who are dependent on help due to special circumstances, such as a disability have to look after without sick pay. However, if the authority so requests, it must be demonstrated that and why no other reasonable care option was available. In addition, the entitlement does not exist during regular school and company holidays.
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Direct contact
chancellery
Stefan Theurer
Marienplatz 23
83512 Wasserburg
Tel. (08071) 8046
Fax (08071) 8047
E-mail: info @ kanzlei-theurer.de
Homepage: www.kanzlei-theurer.de
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