Special leave at birth

Dr. rer. nat. Daniela Oesterle is a molecular biologist, human geneticist and trained medical editor. As a freelance journalist, she writes texts on health topics for experts and laypeople and edits specialist scientific articles by doctors in German and English. She is responsible for the publication of certified advanced training courses for medical professionals for a renowned publishing house.

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Many men would like special leave for a very special day: the birth of their own child. But are you entitled to it? If no agreements are made in the employment or collective agreement, Section 616 of the German Civil Code applies here. But in contrast to the Maternity Protection Act, which guarantees mothers-to-be leave, the legal position for fathers-to-be is only vaguely defined. Read more about special leave here.

Birth: man wants to be there

The trend of the last decades continues: More and more men want to witness the birth of their child. In special cases, employees can claim special leave, i.e. paid leave from work.

Typical reasons for special leave:

• birth
• wedding
• relocation
• Death of a relative

Define a possible right to special leave at birth:

• employment contract
• Works agreement or collective agreement
• Legal regulation according to Section 616 of the German Civil Code (BGB)

How many days of special leave?

Birth is a common reason to grant special leave. From a purely legal point of view, fathers-to-be are also entitled to special leave at birth. The legal basis for this is provided by labor law with Section 616. However, it does not state how many days can be taken.

Exact regulations can often be found in the employment contract, the works agreement or the collective agreement. As a rule, one to two days, occasionally three days, are granted special leave. However, contractual agreements that exclude special leave at birth are also possible. Since the legal regulation by Paragraph 616 is not mandatory, these written agreements then apply.

If, on the other hand, no specific regulation has been made in the written contracts, Paragraph 616 applies. You should therefore discuss with your employer at an early stage whether and how many days you will be given special leave.

Important to know: If the birth falls on a Sunday or public holiday or during your regular vacation, you cannot take the special leave retrospectively. Even with flexitime arrangements, you are not entitled to paid time off during core working hours.

Special leave according to the employment contract

Often the employment contract contains provisions on special leave. If fathers-to-be want special leave at birth, a first look at this written agreement will help. It is also worth talking to the employer or the HR department. As a rule, employees are easily informed about special leave at birth.

It is possible that paragraph 616 is explicitly excluded in the employment contract and that there is no entitlement to special leave. This can disadvantage the employee and thus violate the so-called general terms and conditions control (AGB = general terms and conditions), if a pre-formulated clause has been included in the contract. If, on the other hand, the clause was inserted after precise consultation with the employee, there is no entitlement to exemption. Then you have to apply for regular leave for the birth.

Special leave according to the works agreement or collective agreement

If no provision has been made in the respective employment contract with regard to special leave, a reference to a valid collective agreement or an existing works agreement may be included. There it is usually anchored under what conditions and how many days of special leave are granted.

With these agreements, too, the right to special leave can be denied. Formulations such as "only the actual working hours are paid" indicate this and exclude paragraph 616.

Does man have to be married?

Unmarried men are legally not entitled to special leave at birth. Only married men and men in a marriage-like partnership registered in the sense of the Civil Partnership Act (LPartG) are granted special leave.

If you live in an unregistered partnership, pay attention to formulations such as "spouse and life partner within the meaning of the LPartG". Then you are legally not entitled to special leave.If the addition "within the meaning of the LPartG" is missing, the employer also grants special leave to men without a registered partnership or marriage.

Special leave at birth: civil servants and public service

Civil servants, judges and most civil servants are entitled to one day of special leave when their child is born. Civil servants living in a marriage-like community also receive one day of special leave if a child is born out of wedlock.

Birth creates exceptions

Many companies and businesses now know that family-friendly staff management brings advantages for the company - this includes special leave. The birth of a child can motivate the employer to create exceptions and to grant special leave, even if he is not obliged to do so. So it can't hurt to talk to the boss about it early on.

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