Implementation of the "Work-life balance Directive" - bureaucracy instead of balance
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UPDATE: The German implementation of the directive on work-life balance for parents and family caregivers ("Work-life balance Directive" - (EU) 2019/1158) has passed the German Bundesrat. It shall enter into force the day after it has been promulgated which is expected shortly. The new law provides for only marginal adjustments to the Federal Parental Allowance Act (Bundeselterngeld- und Elternzeitgesetz "BEEG"), the Caregiver Leave Act (Pflegezeitgesetz "PflegeZG"), the Family Care Leave Act (Familienpflegezeitgesetz "FPfZG") and the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz "AGG"). The German legislator - quite literally – has largely laid back on the level of protection already existing. The deadline for implementation has already expired on 2 August 2022 and infringement proceedings were initiated against Germany. The "package for more partnership” announced by the Federal Government in a separate legislative process, introducing two-week partnership leave after childbirth, which was originally planned for this year, is also a long time coming.
What does the "Work-Life Balance Directive" provide for?
In June 2019, the so-called "Work-life balance Directive" was adopted at European level. The directive sets out certain minimum requirements intended to make it easier for working parents and family caregivers to balance work and family life and to contribute to gender equality with regard to labor market opportunities.
The directive covers the following six core areas:
- Right to (paid) paternity leave: Fathers or - if recognised under national law - equivalent second parents are entitled to ten working days of paid leave; this must be taken on the occasion of the birth of the child. The pay has to be at least equivalent to continued pay in the event of illness.
- Right to (paid) parental leave: Each parent has an individual right to four months of paid parental leave, to be taken until the child's eighth birthday, two months of which are non-transferable. The pay must be at a level that facilitates the use of parental leave by both parents, but at least 65% of net income (up to certain caps).
- Right to caregiver leave: Employees have the right to take five working days per year of leave to care for dependents.
- Allowing flexible working time arrangements: Employees with children up to the age of eight and family caregivers have the right to request temporary flexible work arrangements for caregiving purposes, including, for example, working from home where possible.
- Time off work due to force majeure: Employees have the right to time off work in the event of force majeure for urgent family reasons if an illness or accident requires their immediate presence.
- Protection against dismissal and prohibition of discrimination: Dismissal on the ground of applying for or taking paternity or parental leave, leave for family caregivers, or taking advantage of flexible work arrangements is prohibited. Furthermore, employees and employee representatives are to be protected against discrimination by the employer if they have lodged a complaint or initiated legal proceedings in the company to enforce their above rights.
The member states were given a deadline until 2 August 2022 to implement the directive.
What regulations are currently already in place?
According to the BMFSFJ, the majority of the directive's requirements do not require further legal implementation because they correspond to national laws already in force.
Currently, each parent is entitled to up to three years of parental leave per child according to sec. 15 BEEG, which may begin at the earliest with the birth of the child and has to be taken until the child's eighth birthday.
Parents are financially supported during this time with the basic parental allowance. According to this, both parents are jointly entitled to twelve months of parental allowance amounting to 67% of net income (upper limit EUR 1800, but at least EUR 300) in accordance with sections 1, 2, 4 BEEG. This can be extended to up to 14 months if one parent interrupts or restricts the employment they did before the birth for at least two months (so-called partner months). The basic parental allowance may be drawn alternatively or in combination with Parental Allowance Plus in the case of part-time work.
Moreover, German law already provides for caregiver leave in the form of family caregiver leave (sec. 2 FPfZG) and full or partial leave to care for close relatives (so-called caregiver leave, sec. 3 PflegeZG) - however this does not apply in small companies.
In addition, the entitlement to continued remuneration in cases of inability to work due to force majeure or for urgent personal reasons (such as illness of family members) is maintained under the conditions of sections 615, 616 German Civil Code (Bürgerliches Gesetzbuch "BGB"). However, sec. 616 BGB is often excluded in standard employment contracts, which is why its practical significance is low. This is compensated for by the right of all employees, standardised in sec. 2 PflegeZG, to be absent from work for up to ten days with continued remuneration in order to organize the care of close relatives.
Regulations on the reduction and distribution of working time in the case of parental (part) time can already be found in sec. 15 BEEG.
Which regulations are added by the Law to implement the Directive on Work-life Balance for Parents and Caregivers (Vereinbarkeitsrichtlinienumsetzungsgesetz "VRUG")?
The new law only supplements the current legal situation with the following new regulations:
- Flexible working time arrangements: In future, employers must give reasons for rejecting an application for flexible working arrangements during parental leave, regardless of the size of the company.
- Previously, such an obligation to give reasons only applied to a claim for a reduction and distribution of working time (sec. 15 para. 7 s. 4 BEEG). However, such a claim is subject to strict conditions. Among other things, the size of the company (15 employees), the length of service (six months) and the number of working hours per week (between 15 and 32) that the employee would like to work on parental part-time are decisive (see sec. 15 para. 7 s. 1 BEEG). Employers are now also obliged to provide such justification within the scope of the agreement solution and thus regardless of the size of the company (sec. 15 para. 5 s. 4 BEEG (new version)).
- It should also be noted that the place of work remains unaffected by this provision. This is surprising, because the European legislator mentioned (temporary) teleworking as a possible flexible working arrangement (see recital 35). In Germany, on the other hand, even after two years of experience with the feasibility of home office and virtual meetings in the course of the pandemic, there is no entitlement to telework (anymore). While this may be a reason for relief for some employers due to the feared loss of control, it would certainly have been a major step towards promoting the compatibility of family and work.
- Care leave: In future, employees in small companies will also be able to apply for partial leave from work for a maximum of 24 months (so-called family care leave, sec. 2 FPfZG), as well as care leave or other leave for a maximum period of six months for each close relative in need of care (sections 3, 4 PflegeZG). Previously, this was only possible in companies with generally more than 15 (PflegeZG) or 25 (FPfZG) employees.
- The employer has to respond to the application within four weeks of receipt; if he rejects it, he must state the reasons for the rejection (sec. 2a para. 5a s. 2,3 FPfZG (new version) or sec. 3 para. 6a s. 2, 3 PflegeZG (new version)).
- This new provision for small companies is supplemented by protection against dismissal for the duration of the agreed leave of absence under the PflegeZG or FPfZG pursuant to sec. 5 para. 1 s. 2 PflegeZG (new version).
- In addition, employees in small companies are now also able to terminate the leave of absence prematurely if the close relative is no longer in need of care or if domestic care of the close relative is impossible or unreasonable (sec. 2a para. 5a s. 4 FPfZG (new version)).
- Prohibition of discrimination: In future, employees will also be able to turn to the Federal Anti-Discrimination Agency if they believe that they have been discriminated against, because they have applied for or exercised their rights as parents or caregivers to be released from work or to adjust their working hours under the BEEG, PflegeZG or FPZG, or because they have refused work for urgent family reasons under sec. 2 PflegeZG or because they are temporarily personally unable to work under sec. 275 para. 3 BGB. In practice, this is likely to prove to be a "toothless tiger", as the protection against discrimination guaranteed does not go beyond the existing prohibition of discrimination in sec. 612a BGB and is exhausted in the claiming of one's own rights as a person concerned.
The German legislator does not intend to introduce the paternity leave provided for in the Directive, at least with the new law, because of the existing regulations on parental leave.
Accordingly, the new law does not offer any significant relief in balancing family and career. Rather, it is characterised by a higher level of bureaucracy for employers, while regulations that could have contributed to flexibility in everyday working life are sought in vain. It therefore remains the responsibility of employers to find practical and flexible solutions for and with their employees in order to counter the growing shortage of skilled workers.
Paternity leave through the "Package for more partnership"?
The rather half-hearted implementation of the directive by the new law could partially be made up for by the "package for more partnership" announced by the German government. This separate legislative project is intended to address several aspects that could actually have been regulated in the new law.
The "package for more partnership" provides for the following key points:
- the introduction of a two-week paid leave of absence for the partner directly after the birth of the child in the Maternity Protection Act (Mutterschutzgesetz "MuSchG");
- the extension of the partner months in parental allowance; and
- the extension of protection against dismissal due to parental leave after a longer period of parental leave.
Employers will have to observe the following in the future:
- In future, the rejection of an application for flexible working time arrangements must be justified in writing within four weeks (parental leave between birth and the child's third birthday) or within eight weeks (parental leave between the child's third birthday and the child's eighth birthday), regardless of the size of the company.
- In future, employees in small companies will also be able to agree on a leave of absence under the PflegeZG or FPfZG. Such applications have to be answered by the employer within four weeks of receipt of the application and reasons must be given in the event of rejection. During the period of leave, employees enjoy special protection against dismissal.
- Employees may contact the Federal Anti-Discrimination Agency if they believe they have been discriminated against as a result of taking parental leave, nursing leave or family care leave.
It remains to be seen whether and when the announced partnership leave and an even more extensive protection against dismissal will be introduced.