The compatibility of family and career is a particularly important concern these days. The possibility of claiming parental leave plays a central role – not only for women, but increasingly also for men. But who is actually eligible and what must be taken into account when claiming the leave??
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Who can request parental leave?
The right to parental leave is regulated in § 15 BEEG. In principle, all employees, including trainees (hereinafter referred to uniformly as "employees"), who live with their child in a household and care for and raise the child themselves, are entitled to parental leave.
However, it does not necessarily have to be the biological child:
- Because also, who has taken a child into the household with the aim of adoption or for full-time care, is in principle entitled to apply for parental leave.
- The same applies if employees have added a spouse’s or domestic partner’s child to the household, or if an employee’s declared paternity of a child living in the household has not yet been validly adjudicated.
- In addition, relatives up to the third degree and their spouses or partners are generally entitled to parental leave if they live with the child in a household and care for and raise the child themselves because the child’s parents are unable to care for the child due to serious illness, severe disability or death.
- Also, in principle, employees can claim parental leave who live in a household with their grandchild and care for and raise it themselves, provided that one of the child’s parents is a minor or is still in education (restrictively, however, only for those periods when neither parent claims parental leave themselves).
For what period is there a right to parental leave?
The right to parental leave exists according to § 15 para. 2 BEEG until the child reaches the age of three, thus for a total of 36 months. However, there is a possibility to take a share of up to 24 months beyond the completion of the third year of life to the time until the child reaches the eighth year of life. In the meantime, the employer’s consent is no longer required.
In the case of an adopted child or a child in full-time or adoptive care, the date of admission to the household is the decisive point in time: parental leave may be taken for a period of 36 months from the date of admission, and the transfer option applies here accordingly.
The entitlement to parental leave for a total of 36 months applies to each child, even if the periods overlap. Parental leave can also be taken in full by either parent alone or by both parents together.
Applications for parental leave must be made in writing
The formalities to be complied with when applying for parental leave are set out in § 16 BEEG. Thereafter, the application for parental leave must first be made in writing; an application by e-mail or fax is therefore not sufficient. A request not made in writing would be invalid and would therefore not have to be complied with by the employer.
Observe notice periods
In addition, notice periods must be observed when applying for parental leave. Anyone wishing to take parental leave in the period up to the age of three must give at least seven weeks’ notice before the start of parental leave. Anyone wishing to take parental leave between the child’s third birthday and the child’s eighth birthday must give the employer a longer notice period of 13 weeks before the start of the parental leave.
If the aforementioned notice periods are not complied with, the application is not invalid – in contrast to non-compliance with the strict written form – but the parental leave then only begins after the expiry of the respective notice period.
Specifying the period of parental leave requested
However, it is always essential that the parental leave application is formulated in a sufficiently specific manner, d.h. in particular, the requested parental leave must be specified in terms of time. It must be specifically stated for which periods parental leave is to be taken. It should be noted that employees taking parental leave up to the age of three must make a binding commitment for a period of two years from when to when parental leave is desired. If, for example, an employee only applies for parental leave for the first year and then wishes to "extend" the parental leave by a further year, the employer could have a right of refusal for such an extension. Since a parental leave application already received by the employer can usually no longer be unilaterally revoked, employees should be sure of their wishes in advance.
However, the designation of the actual start of parental leave can pose a problem especially for male employees who would like to take parental leave from the birth of the child, since the actual date of birth cannot be determined with certainty by nature. In such cases, it is necessary, but also sufficient, if the calculated date of birth is stated and it is expressly indicated that parental leave is desired from the actual date of birth. However, this problem does not arise for female employees. This is because they can only take parental leave eight weeks after childbirth at the earliest, as they are previously in the eight-week protection period of the Maternity Protection Act. Should a female employee therefore wish to take parental leave from the first day after the end of the eight-week protection period of the Maternity Protection Act, the desired parental leave could be applied for in the first week after the actual date of birth, stating a specific start date.
Division of parental leave into periods
According to § 16 para. 1 S. In accordance with § 5 BEEG, it is also possible to divide the parental leave into up to three periods from the outset. In this respect, employees can determine, for example, that after six months of parental leave, there will be a period of work again for a period of three months before another period of parental leave is to follow. Employers have no right to refuse in these cases.
Only if a third period of time is to be in the period between the third birthday and the completed eighth year of the child’s life, the employer can reject this claim within eight weeks after receipt of the request for urgent operational reasons. Of course, the possibility to divide the parental leave into more than three time periods with the consent of the employer remains unaffected.