The birth of your own child is one of the most beautiful moments in life. But you have a right to special leave for this?
The birth of one’s child is a special event for parents. If the day of birth is a working day, the event conflicts with the contractually owed duty to work. In this article, we explain the legal situation with regard to a claim to paid leave for the day of birth.
Do parents have a legal right to special leave for childbirth?
For mothers, the question of special leave does not arise. For them, the legislator has expressly legislated protection periods before and after childbirth in the Maternity Protection Act: Gem. § 3 Abs. 1 Maternity Protection Act (Mutterschutzgesetz, MuSchG), a pregnant woman may take leave during the last six weeks before childbirth be employed unless she expressly agrees to perform work. Gem. § 3 Abs. 2 MuSchG, the employer is allowed to dismiss a woman until the expiry of eight weeks after childbirth do not employ. The period of protection after childbirth is a period of special leave absolute prohibition of employment, this means that no waiver is possible. During the protection period you are entitled to maternity benefits from the health insurance company, as well as to an allowance from the employer.
The legislator has not created an explicit regulation for fathers. If neither the employment contract nor the collective bargaining agreement and also no company agreement contain a corresponding regulation, a claim to special leave can arise from § 616 of the German Civil Code (BGB). The basic requirement is that the provision has not been effectively contractually waived or modified.
"Paternity leave" as temporary prevention i. S. d. § 616 BGB?
The consequence of § 616 of the German Civil Code (BGB) in labor law is that the employee does not lose his wage entitlement if he is prevented from performing his work for a relatively insignificant period of time due to a personal reason for which he is not responsible. The birth of a wife or partner constitutes such a reason lying in the person of the employee. But beware: By judgment of 18.01.In 2001, the Federal Labor Court (BAG) ruled that a collective agreement provision according to which only married persons are entitled to special leave is permissible and can lead to the father of a non-marital child going away empty-handed. In the opinion of the BAG, this violates neither Art. 3 Abs. 1 Basic Law (GG) nor violates Art. 6 GG. A constitutional complaint against the collective agreement regulation was not accepted by the Federal Constitutional Court at the time due to lack of fundamental importance.
How long special leave in case of birth?
The special leave from § 616 BGB exists after the wording of the regulation, for a not substantial time. As a rule, on the occasion of the birth of his child, the employee is assumed to be entitled to paid time off for one day.
In any case you should contact your employer. Otherwise, sanctions for unauthorized absence from the workplace in the form of a warning or even termination may be threatened. Even if the conditions for a claim to a paid leave of absence do not exist, the employer will usually try to reach an amicable solution. With pleasure Kupka& law office will help you Stillfried to enforce your interests to attend the birth of your child and support your partner. For further questions please do not hesitate to contact us.