Several changes in labour law important for both employees and employers became effective as of 1 August and 1 September 2019.
Entitlement to paternity month
A change in the Paternal Leave Act (Väter- Karenzgesetz; VKG), published in Federal Law Gazette I 73/2019, created a legal option, available as of 1 September 2019, for fathers to request and take leave for a term of one month provided they live in the same household as the child (Section 1a VKG). Contrary to the entitlement to part-time employment of parents, this entitlement is due without regard to the employer's interests and regardless of the size of the undertaking or the duration of the employee's employment.
The paternity month commences on the day following the child's birth at the earliest and may, as a rule, be claimed until such time as the mother is allowed back to work. When the mother is not entitled to parental leave, paternity leave due to childbirth may
be claimed until the expiry of eight weeks after birth or, in the case of early, multiple or caesarean-section birth, twelve weeks after birth. While the father takes his paternity month the main mutual obligations of the employment contract, including but not limited to the employee's duty to work and the employer's duty to pay, are suspended. Nevertheless, the father may obtain a "family time bonus" subject to his meeting the relevant criteria.
When an employee intends to take up the offer of a paternity month, he needs to notify his employer of the expected commencement of his month not later than three months before the estimated date of birth (advance notice). If he misses this deadline, he may still endeavour to achieve a mutual agreement with the employer. In a second step, the employee needs to promptly inform his employer of the actual birth and notify the start of his paternal month not later than one week after birth.
Same as with parental leave and part-time employment of parents, employees claiming a paternity month are protected against (summary) dismissal. This protection starts upon notification but not earlier than four months before the estimated date of birth and extends for four weeks after the end of the paternal month.
The period of such leave must be credited towards claims that depend on the period of service (see below). The entitlement to a paternity month arises additionally to the entitlement to paternity leave. Under Section 1a (4) VKG, any additional claim under a law, collective bargaining agreement or individual contract for leave at the occasion of a child's birth must not be credited towards the paternal month. According to the wording of the law, the entitlement to leave already provided for in several collective bargaining agreements would therefore need to be granted in addition to the paternal month.
Crediting parental leave periods towards claims dependent on the period of service
Changes were also made to the crediting of parental leave periods towards claims that depend on the period of service. For births on or after 1 August 2019, parental leave pursuant to Section 15f of the Maternity Protection Act (Mutterschutzgesetz; MSchG) must be fully credited for any and all legal claims that depend on the duration of service. These include the duration of the period of notice and of continued pay, the length of the holidays and payment under the old severance scheme, as well as wage/salary increments, anniversary bonuses and other entitlements under a collective bargaining agreement which depend on the period of service. The parental leave period still cannot be credited as a previous period of service for the employee's classification under the collective bargaining agreement. Parental leave periods are now credited for all such periods rather than just for the first parental leave.
Continued pay for disaster relief spells
A change that has been debated for many years entered into force on 1 September 2019: it grants employees a legal entitlement to continued pay when they are prevented from working due to being deployed as a voluntary member of a disaster relief organisation, rescue service or voluntary fire brigade in the course of a catastrophic event or as a member of a mountain rescue service, and provided that the scope and situation of the leave are agreed beforehand with the employer (Section 8 (3a) of the Salaried Employees Act (Angestelltengesetz; AngG)). A catastrophic event is defined by the law as a disaster which requires the necessary deployment of more than 100 persons in total for a continuous period of at least eight hours.
While this regulation certainly serves the public weal, it is nevertheless far removed from reality. A disaster operation requires prompt response so that any advance agreement with the employer regarding the scope and situation of the leave will in actual practice be unfeasible. Nevertheless, employers are free to continue payment even without an advance agreement.
In compensation for continued payment, employers are granted a lump-sum premium of EUR 200 per deployed employee and day, taken from the Disaster Relief Fund. This claim is, however, due only when the employee served with an approved emergency organisation in the course of a catastrophic event or was continuously deployed for at least eight hours for a mountain rescue operation (Section 3 (3) b of the Disaster Fund Act (Katastrophenfondsgesetz)). It is notable that the employee's claim for continued pay also applies to operations of less than eight hours for members of a mountain rescue service. The law does not define the meaning of an "approved emergency organisation" so that it may not always be clear whether the employer actually gets recompensed in spite of being obliged to continue the employee's pay. It needs to be seen whether legislators will clarify such issues in order to ensure legal certainty.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
