Covid-19 / financial support for employees in the event of school and nursery closures

If schools or nurseries are closed by official order and employees are unable to work because they have to care for their children, the employer is obliged to continue paying the remuneration for a few days due to the employee’s personal incapacity according to section 616 German Civil Code. 

On 25 March 2020, the Bundestag decided to amend the Protection against Infection Act (Infektionsschutzgesetz – IfSG) in order to specify the rules for the consequences of school and nursery closures for employees and employers. Unfortunately, the changes still contain some ambiguities. The legislative process is expected to be completed by the end of March 2020.

Employees’ right to compensation and employers’ right to reimbursement

Employees who have to take care of their children due to the closure of the school or nursery and are unable to work are to be entitled to compensation of 67% of their net monthly income for a period of up to six weeks under section 56 (1a) IfSG. Entitlement to compensation will be limited to a maximum of €2,016 per month. The compensation is initially to be paid by the employer. However, the employer may apply for a reimbursement of the compensation to the competent state authority.

The employee’s right to compensation shall be subject to the following conditions:

1. Working parents have to care for children (i) who have not yet reached the age of 12 or (ii) who are disabled and therefore need help/care.
2. There must be no other reasonable possibility for care. This must be demonstrated by the employee. Covid-19 risk groups, such as grandparents, have not to be considered. 
3. Flexitime or overtime credits must be used first. In addition, there must be no other way of temporarily staying away from work on a paid basis (e.g. reasonably working from home).
4. For periods when nurseries or schools are closed due to school holidays anyway, there shall be no entitlement either.

The new scheme will apply for a limited period until 31 December.

The employee’s right to compensation, like the current legal situation regarding section 56 (1) IfSG, is only meant to exist in cases where the employee suffers a loss of earnings, i.e. there are no other claims for continued payment of remuneration against the employer. The explanatory memorandum states, among other things:

‘A claim for compensation shall only apply if the closure of or prohibition of entry to schools or nurseries alone results in a loss of earnings. This is not the case, for example, if and to the extent that the employee is already able to stay away from work on other statutory, collective bargaining, works constitutional or individual legal grounds with continued payment of remuneration or a cash benefit corresponding to the amount of remuneration. Where such legal possibilities exist, they must be used as a matter of priority. This is the case, for example, if the employee with custody rights is still entitled to time off in lieu. This should be used up as a matter of priority.’ 

Unfortunately, the bill does not meet the practical needs. In particular, it fails to ensure the aim of non-bureaucratically reducing the burden on companies in order to avoid further liquidity difficulties. Employers will (again) have to make advance payments are well advised to apply to the competent authority in good time for reimbursement in consultation with the employees concerned.