What Is New?
Legal situation up to now: Until now, fathers-to-be were able to take one month unpaid leave due to the birth of their child (a "father's month") only with the employer's explicit consent, i.e., the statute did not grant employees a general legal claim in this regard. Only in the public sector as well as in some collective bargaining agreements exceptions existed.
As of 1 September 2019, a new law applies: Under certain conditions fathers-to-be (as well as female employees if they are -- e.g., due to a registered partnership -- legally recognized as second parent) enjoy a legal claim to a father's month. In addition, employees are subject to special protection against ordinary termination and immediate dismissal.
What Does the Concrete Legal Framework Look Like?
- One-month-off unpaid leave: The one-month-off period is designed as unpaid leave during which employees are not subject to any working duties and employer's instructions.
- Leave only upon request of the employee: The employee must request the father’s month and thereby has to observe certain time limits. Thus, employers are not obliged to proactively offer a father’s month.
- Mandatory time frame: The father’s month can only be consumed after childbirth until the end of the period during which the mother is subject to a statutory employment ban, i.e. eight to sixteen weeks (in extreme cases) after giving birth. The employee can choose the beginning of the father’s month freely. The employer's consent is also not required in this respect.
- Legal requirements in detail: (1). The employee needs to share a joint household with the child. (2). Moreover, the employee needs to comply with specific informational requirements and timing:
Before childbirth: The employee must inform the employer of his request to take the father’s month as well as of the approximate day of confinement. This information must be provided at the latest three months prior to the estimated childbirth.
After childbirth: The employee needs to inform the employer immediately once the child is born. Furthermore, he needs to inform the employer about the date of commencement of the father’s month within one week after childbirth.
- Loss of claim: Agreement on unpaid leave: In case the employee violates his legal duties to inform the employer in time, he loses his legal claim to the father’s month. However, an agreement on unpaid leave due to fatherhood may still be concluded between employer and employee.
- Special protection against termination: Employees enjoy special protection once they have made the request to take a father’s month. However, protection starts at the earliest four months prior to the estimated day of confinement and lasts until four weeks after the father’s month has ended. “Special protection” means that an ordinary termination or immediate dismissal without the court's consent would then be void. This kind of protection is also applicable in case a father’s month is based on an agreement.
- Date of application: The statutory provision regarding the father’s month has come into force on 1 September 2019. However, a father’s month can only be taken for children whose anticipated childbirth date (not the birth itself) is three months after the enactment of the new law, i.e. for expected dates of delivery from December 1, 2019 onwards. The actual birth may also take place before 1 December 2019, though.
What Does This Mean for Employers from a Practical Perspective?
From now on employers cannot prevent employees from taking a father’s month, provided they comply with the new legal requirements. Thus, employers must be able to react fast in order to manage longer drop-outs of employees. The new provisions demand to carefully plan ahead and use personnel resources with due care. In the light of these legal amendments, HR management plays a key role.