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:
No special protection against dismissal
Special protection against dismissal – or a supplement to or reference to Section 17 MuSchG – has not yet been provided for.
No notice period
According to the wording of the planned Section 25a 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.
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 .