The introduction of two weeks of paid partner leave after the birth of a child is now planned for "early 2024" - after the EU Commission had already initiated infringement proceedings against Germany in September 2022 for failing to implement the corresponding EU directive.
In March 2023, the German Ministry of Family Affairs presented a draft bill that would allow the second, non-birthing parent to take ten days paid leave after the birth. This family start time is intended to create a protective and safe space during the first few days after the birth and at the same time create impetus for the division of tasks between partners with regard to the compatibility of family and career.
Previous legal situation
To date, there is no legal basis for the second parent – corresponding to statutory maternity leave for the mother who is giving birth – to claim paid leave from work after the birth. If the mother’s partner wants to be with the family after the birth, they must take “parental leave” (in German: “Elternzeit”). This is an unpaid leave of absence for which the state-funded parental allowance (in German: “Elterngeld”) can be applied for as compensation. However, depending on the level of income, the parental allowance only corresponds to 65% of the previous net income and is also capped at EUR 1,800 per month.
Implementation of EU law
The draft bill submitted by the Ministry of Family Affairs to amend this legal situation is intended to implement the EU Directive on work-life balance for parents and carers (Directive (EU) 2019/1158), which came into force in 2019. The aim of the directive is to ensure gender equality in the labour market by promoting a fair distribution of caring responsibilities between parents.
Germany was of the opinion that the existing regulations on parental leave (Elternzeit) and parental allowance (Elterngeld) met the requirements of the directive on “paternity leave”. However, this is not the case with regard to ten-day paid leave. The EU Commission therefore initiated infringement proceedings against Germany in September 2022 – after the two-year implementation period until August 2022 had expired.
Key regulations according to the draft bill
According to the draft, the new regulation should come into force at the beginning of 2024. However, since the Ministry of Family Affairs submitted the draft, it has been in the departmental coordination phase. It is therefore still unclear when the bill is expected to come into force and what its content will be in the Bundestag.
The current draft bill essentially contains the following provisions:
- Section25a of the proposed amended Maternity Protection Act (MuSchG Ref-E) is intended to regulate the second parent’s right to time off for the first ten working days after birth.
- Eligible shall be only one person, either the other parent, partner in the same household or, if the other parent does not live in the household, a person nominated by the mother.. (The “other designated person” is not defined in more detail in the draft bill. However only for employees the proposed entitlement to time off and continued remuneration will make sense).
- The period of partner leave is counted towards parental leave in the same way as the maternity protection period, Sec.15 BEEG Ref-E.
- The second parent receives so-called “partnership pay” (in German: Partnerschaftslohn) from the employer in the amount of the average salary of the last three calendar months.
- This partnership pay (Partnerschaftslohn) is offset against the parental allowance (Elterngeld) in accordance with Sec.3 BEEG Ref-E if there is an entitlement to parental allowance (Elterngeld).
No special protection against dismissal
Special protection against dismissal – or a supplement to or reference to Section17 MuSchG – has not yet been provided for.
No notice period
According to the wording of the planned Section25a MuSchG, the leave of absence can be requested “on a daily basis” and “in the first ten working days”. There is no further notice period, even if the partner is to “inform his or her employer of the pregnancy and the expected date of delivery”.
This also makes it legally and very family-friendly to take “spontaneous ad hoc” leave, e.g. for unexpected premature births, but also for designated “third parties”, e.g. single parents. However, traditional fathers who fear sanctions and disadvantages from less open-minded employers are also likely to delay an announcement until there is special protection against dismissal due to an additional request for parental leave (Elternzeit). This is not in the interests of companies or sensible personnel planning.
Financing
The partnership pay (Partnerschaftslohn) will be borne by the employer. The draft bill currently stipulates that the costs of paid leave – in line with the maternity protection regulations – are to be covered by the employer-financed U2 levy procedure, meaning that they will also be reimbursed in full in accordance with Sec. 1 AAG .
Practical note
Paid leave for the second parent after the birth in Germany is yet to come. However, employers can already prepare for a corresponding regulation now – both in terms of HR planning for 2024 and with regard to any HR software tools implemented. Unlike parental leave, fully paid “two weeks of family start time” should also be attractive for high earners and thus be predominantly utilised. Of practical relevance for actual personnel planning is the fact that there is currently no requirement for a notice period. The “should” provision with regard to pregnancy and the expected date of birth also allows “spontaneous ad hoc” utilisation for unexpected premature births, for example, but also for designated “third parties”, e.g. single parents, in a legal and very family-friendly manner.
Likewise, traditional fathers who fear sanctions and disadvantages from less open-minded employers may delay an announcement until there is special protection against dismissal due to an additional request for parental leave. This would not be in the interests of the company or sensible personnel planning. Employers can counteract this through appropriate communication, convey security and family friendliness and ask for information as early as possible.
Your Expert
Senior Counsel, Köln
T +49 221 5108 4118
Email Sonja Riedemann, LL.M. (LSE)
