BSG: New parental leave does not preclude entitlement
(jur). This was emphasized by the Federal Social Court (BSG) on Thursday, February 18, 2016 in Kassel (ref .: B 3 KR 10/15 R). Thereafter, there is no obstacle to continued payment if a parent with an existing entitlement to “child sickness benefit” also takes parental leave and receives parental benefit.
According to the law, parents receive sick pay ten days a year to care for their sick children under the age of twelve; for single parents it is 20 days a year. In addition, there is a claim if the child has a serious and incurable disease that "can only be expected to have a limited life expectancy of weeks or a few months".
In the specific case, the son had the rare, genetic metabolic disease adrenoleukodystrophy (ALD). It is almost exclusively passed on from mothers to their sons. ALD became known in 1992 through the American film "Lorenzos Oil". The disease leads to a nervous deterioration and thus to the loss of vital body functions.
The son died in August 2012 at the age of eleven. The mother, a medical nurse, had previously cared for the child at home for over three years. Initially, she had received child sick pay for about 700 days. Because of the birth of a second child, she was then on maternity leave, so that the entitlement to sickness benefits was suspended.
After that, the health insurance company did not want to resume sick pay. After all, she's getting parental allowance. In addition, according to the law, she can only claim sick pay if she was previously unable to work. That was not the case with the medical assistant.
However, according to the BSG, the legislature wanted to ensure that parental leave does not interrupt an existing entitlement to sickness benefit. The fact that the wording chosen does not apply to children's sickness benefits is a "mistake in the editorial office".
The Kassel judges also emphasized that the legal requirement of a short life expectancy only affects medical forecasts. If this does not happen, as here, the right to child sickness benefit is "generally unlimited".
The mother's lawyer said on the sidelines of the trial in Kassel that the second son ALD had not inherited and was healthy. The former employer, a doctor, had kept the mother's position vacant, so that she now worked as a medical assistant in the practice. (mwo / fle)