As a new or expecting parent, you may have lots of questions when planning your return to work after your parental leave (Elternzeit).
Here are some of the most frequently asked questions, answered by Jon Heinrich, who is a specialist lawyer for labor law in Berlin. His specialty is English-language advice to international employees in the Berlin start-up scene.
What rights do parents have during parental leave (e.g. part-time parental leave)?
Yes, parents can also work during parental leave and reduce their current working hours or continue their previous part-time work.
During parental leave, parents of children born after August 2021 may work up to 32 hours per week. Parents with children born before August 31, 2021, may not work more than 30 hours per week during parental leave for that child. In both cases, it is not the individual week that matters, but the monthly average.
Of course, all other employee protection rights apply as they did before the start of parental leave. In addition, it is difficult for parents to be dismissed during parental leave and also during part-time parental leave. The special protection against dismissal pursuant to Section 18 BEEG (Federal Parental Allowance and Parental Leave Act) applies.
What are the prerequisites for rejoining your company after Elternzeit?
There are no special requirements for returning to work after parental leave. Of course, the employer can hire a so-called "parental leave substitute" for the period of parental leave, but after the return from parental leave the employer must employ an employee in accordance with the contract again.
This usually means that the parent is then re-employed in his or her old job. The employment relationship continues as normal; it was not interrupted during the parental leave. Only the principal obligations of the parties are suspended during the parental leave (insofar as no parental part-time work takes place). This means that the employee does not perform any work, and the employer does not have to pay any salary.
If an employment contract was concluded for a fixed term from the outset (“befristet” in German), pregnancy or parental leave cannot change this. The contract is then not terminated but ends "automatically” on the date stated in the original contract.
What can parents do if they feel they are being discriminated against after their return to work?
As already explained, the employer may not penalize parents returning to work by, for example, assigning them a job of lesser quality than before they became parents or even terminating their employment because the job has been filled by someone else in the meantime.
If you feel that your job or tasks have a lesser quality than before your parental leave, you should contact an employment lawyer and have them assess your situation.
In the case of suspected discrimination due to the utilization of parental leave or due to pregnancy, it may be a case of prohibited discrimination under the General Equal Treatment Act (AGG).
The person concerned may then be entitled to injunctive relief and damages. In this case, too, however, the affected persons should immediately contact a specialist attorney for employment law, since only very short deadlines apply here for asserting the claims or for a corresponding lawsuit (regularly 2 or 3 months, sometimes even shorter).
Can parents be dismissed by their employer?
Because there is no longer any special protection against dismissal after the end of parental leave, parents can be dismissed in principle.
However, outside of small companies with fewer than 10 full-time employees, the so-called "general protection against dismissal" still applies here, i.e. a dismissal can only be issued under certain legal conditions. In any case, an attorney for employment law should be consulted immediately in this case.
What rights do parents have after parental leave (e.g. part-time work, sick days for children...)?
It is also possible to work part-time after parental leave. In this respect, the legal requirements apply as they do for all other employees. As mentioned previously, all employee protection regulations apply in other respects as they did before parenthood.
Parents with children under the age of 12 or parents with disabled children may be absent from work for individual days if their child is ill and there is no other care available. Depending on how the employment contract is formulated, employees are then still entitled to receive pay, but regularly for no more than ten days a year.
If there is no entitlement to pay, parents will receive sick pay in accordance with Section 45 of the German Social Code, Book V (SGB V) if they and their children are covered by public health insurance.
Normally, this entitlement to sick pay exists in each calendar year for each child for a maximum of 10 working days, and for single parents for a maximum of 20 working days. With several children, the entitlement is for no more than 25 working days, and for single parents for no more than 50 working days per calendar year.
Special provisions apply for the years 2024 and 2025, whereby parents can claim children's sickness benefits for 15 working days (single parents for 30 working days) for each child covered by statutory health insurance. If there are several children, each parent is entitled to no more than 35 working days, and single parents to no more than 70 working days.
Anything else that new and expectant parents should know about in regards to returning to work after parental leave?
It's important to know that the prior determination of the parental leave period is binding for both sides - i.e. employee and employer - during the first two years of the child's life. This means that an extension or shortening of parental leave can only happen by mutual agreement.
Only in cases of extreme hardship (the law refers to the occurrence of serious illness, severe disability or death of a parent or child, or if the parents' economic existence is significantly endangered after taking parental leave) can parental leave in this case be unilaterally shortened or extended by the employee.
It should therefore be carefully considered at the beginning of parental leave for which periods of time parental leave is to be taken. Subsequently - during the first two years of your child's life - a change is only possible with the employer's consent.
Thank you!
