Parental leave presents employers with a range of legal challenges — from application deadlines and dismissal protection to holiday entitlement reduction. This article provides a comprehensive overview of the key obligations and structuring options.
Parental Leave and Parental Allowance: What Employers Need to Know
The birth of a child is a joyful event for your employees — but for you as an employer, it also entails a series of legal obligations. From correctly processing the parental leave application and managing special dismissal protection to organising cover arrangements: the requirements are manifold and the potential for error is considerable. A thorough understanding of the statutory provisions protects you from costly legal mistakes while contributing to an employee-friendly corporate culture.
Entitlement to Parental Leave Under § 15 BEEG
Who Is Entitled?
In principle, all employees are entitled to parental leave, provided they live with the child in a common household and care for the child themselves. The entitlement exists regardless of the type of employment relationship — it applies equally to full-time and part-time employees, fixed-term employees, trainees, and marginally employed workers. Adoptive parents and, in certain cases, grandparents may also claim parental leave.
Duration and Division
Parental leave totals up to 36 months per child. Of this, up to 24 months may be taken between the child's third and eighth birthday. Parental leave may be divided into up to three periods. Further division requires the employer's consent.
Both parents may take parental leave simultaneously or consecutively. The periods are calculated separately for each parent — a transfer between parents is generally not provided for.
Application Deadlines and Formal Requirements
The 7-Week and 13-Week Deadlines
Different deadlines apply for notifying parental leave, depending on when the leave is to begin:
- 7 weeks before commencement, if parental leave is to begin before the child's third birthday
- 13 weeks before commencement, if parental leave is to be taken between the child's third and eighth birthday
Notification must be made in writing — an email is insufficient, as the written form requirement under § 126 BGB requires a handwritten signature. At the same time, the employee must make a binding declaration of the periods for which parental leave will be taken within the next two years.
Legal Consequences of Late Notification
If the employee misses the deadline, the start of parental leave is postponed accordingly. Parental leave is not granted retroactively. As an employer, you should document receipt of the notification and confirm receipt in writing.
Dismissal Protection Under § 18 BEEG
Scope of Protection
The special dismissal protection begins at the earliest 8 weeks before the start of parental leave (for parental leave before the third birthday) or 14 weeks before the start (for parental leave between the third and eighth birthday). It continues throughout the entire parental leave period.
During this period, dismissal by the employer is generally prohibited. This applies to both ordinary and extraordinary dismissals.
Exceptions with Official Approval
In exceptional circumstances, the competent supervisory authority may declare the dismissal permissible. Such cases arise, for example, in the event of:
- Business closure without any possibility of continued employment
- Particularly serious breaches of duty by the employee
- Threat to the business's existence if the employment relationship is maintained
The application for a declaration of permissibility must be filed with the competent supreme state authority for occupational health and safety. Approval is granted only restrictively.
Part-Time Work During Parental Leave (§ 15 Abs. 5-7 BEEG)
Entitlement to Part-Time Work
Employees on parental leave are entitled, under certain conditions, to a reduction of working hours. The conditions are:
- The employer generally employs more than 15 employees
- The employment relationship has existed without interruption for more than six months
- The desired working time is between 15 and 32 hours per week (increased from 30 hours since September 2021)
- No urgent operational reasons preclude the entitlement
Employer's Right to Refuse
You may refuse the application for part-time work only for urgent operational reasons. The refusal must be made in writing and within four weeks of receiving the application. If you fail to respond within the deadline, consent is deemed to have been granted. Document your reasons for refusal carefully, as they are subject to judicial review in the event of a dispute.
Parental Allowance, ElterngeldPlus, and Partnership Bonus
Overview of Benefit Types
Although parental allowance is a state benefit and not funded by the employer, you should be familiar with the basics in order to competently inform your employees:
- Basic parental allowance (Basiselterngeld): 65-67% of the lost net income, minimum 300 euros, maximum 1,800 euros per month, for up to 12 months (plus 2 partner months)
- ElterngeldPlus: Half the amount of basic parental allowance, but payable for twice as long; particularly attractive in combination with part-time work during parental leave
- Partnership bonus (Partnerschaftsbonus): Four additional months of ElterngeldPlus if both parents simultaneously work 24-32 hours per week
Employer's Certificate
As an employer, you are obliged, upon request, to issue a certificate of employment income that the employee requires for the parental allowance application. This should contain the average income for the twelve months preceding the birth.
Supplement to Maternity Pay
During the maternity protection period (generally six weeks before and eight weeks after birth), employees with statutory health insurance receive maternity pay from their health insurance fund of a maximum of 13 euros per calendar day. The difference to the average net pay is borne by you as the employer as a supplement to maternity pay pursuant to § 20 MuSchG.
This supplement is reimbursed to you through the U2 reallocation scheme by the health insurance fund. Ensure that you participate in the U2 scheme and apply for reimbursement in a timely manner.
Holiday Reduction During Parental Leave (§ 17 BEEG)
Employer's Right to Reduce
For each full calendar month of parental leave, you may reduce the annual holiday entitlement by one twelfth. However, this reduction does not occur automatically — you must expressly notify the employee of the reduction. If you fail to do so, the full holiday entitlement remains.
Carry-Over of Remaining Holiday
Holiday not taken before parental leave does not lapse. It must be granted and taken in the current or following holiday year after the end of parental leave. If the employment relationship ends during or after parental leave, the remaining holiday must be compensated financially.
Return to Work
Right to Employment
After the end of parental leave, the employee has a right to return to their previous contractual terms. However, there is no entitlement to the identical workplace — you are merely obliged to offer employment consistent with the contractual agreement.
Preparing for the Return
Plan a return-to-work meeting well in advance, ideally several weeks before the end of parental leave. Clarify:
- Working time preferences and possible part-time models
- Training and onboarding needs
- Organisational changes during the absence
- Childcare arrangements and flexibility requirements
Practical Tips for HR Management
Cover Planning
- Consider early whether a fixed-term replacement hire under § 14 Abs. 1 Nr. 3 TzBfG is appropriate
- Use the option of a fixed-term contract without objective reason only subsidiarily, as it cannot be combined with the parental leave replacement if prior employment existed
- Document the objective reason (cover) in the fixed-term employment contract
Documentation and Deadlines
- Create a checklist for parental leave applications
- Record all relevant deadlines: start and end of parental leave, dismissal protection periods, part-time applications
- File the written parental leave notification in the personnel file
- Record the reduction of holiday entitlement promptly in the HR system
Communication
- Inform the team in good time and transparently about the cover arrangements
- Maintain contact with the absent employee during parental leave, if desired
- Offer information sessions or an internal fact sheet on parental leave and parental allowance
Conclusion
The statutory provisions on parental leave and parental allowance are complex but perfectly manageable with careful attention. Proactive parental leave management not only protects you from legal risks but also strengthens your employer brand. Particularly in times of skills shortages, a family-friendly corporate culture can be a decisive competitive advantage.
The team at compleneo provides comprehensive advice on all employment law questions relating to parental leave, maternity protection, and part-time entitlements — from the legally sound design of your internal processes to representation in employment court proceedings.
