Paid leave to care for sick children in the public sector. BAG 05.08.2014 - 9 AZR 878/12

Employees in the public sector who have private health insurance can be granted up to four days off per calendar year if their child falls seriously ill. If another child falls seriously ill, the employee is entitled to request only one additional day of paid leave.

In April 2010, the plaintiff, who is employed by the defendant under the application of the provisions of the TVöD to the employment contract as agreed in her individual contract and who does not have statutory health insurance, was released from work for four days with continued payment of remuneration in accordance with Section 29 (1) sentence 1 e) bb) in conjunction with sentence 2 TVöD due to the illness of her son, who had not yet reached the age of twelve. Sentence 2 TVöD from work. When the plaintiff's daughter, who was also not yet twelve years old, fell ill in May 2010, the defendant again released the plaintiff from work at her request, but refused to continue to pay her salary. The claim under § 29 para. 1 sentence 1 e) bb) in conjunction with sentence 2 TVöD was limited to the period of sick leave. Sentence 2 TVöD was limited to the leave of absence with continued payment of remuneration for four days. The plaintiff countered that it was not possible to infer from the wording or the system of this provision that the claim could only be fulfilled once (i.e. for one child). Rather, the maximum limit regulation of Section 29 (1) sentence 3 TVöD on a possible leave of absence of a total of 5 days per year argued the opposite.

The BAG clarified that in the event of a serious illness of a child under the age of twelve, the entitlement to paid time off is limited to four days, but that the maximum limit of five days per year is decisive for time off in the event of the illness of another child and therefore ruled in favor of the plaintiff.

If the employee is not covered by the TVöD and has statutory health insurance, § 45 SGB V is relevant for the question of paid leave in the event of illness of the child up to the age limit of twelve years, and § 616 BGB after the age of twelve years. These contain a personal reason for the parents' inability to work, which leads to an entitlement to paid leave in addition to the respective other requirements. If both parents are employed, it is up to them to decide which of the parents will take care of the sick child at home. If only one of the parents is employed, the other must take over the care. A maximum period of leave is provided for in § 45 Para. 2 SGB V. Until the child reaches the age of twelve, they are entitled to a maximum of 10 working days per year and per child, or 20 working days for single parents. The maximum limit if several children are ill is 25 working days per year, and 50 for single parents. In contrast to Section 45 SGB V, Section 616 BGB can be waived in employment contracts, meaning that the employer can exempt themselves from the risk of paid leave.

Date: 5. Aug 2014