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BSG on the flying change from maternity leave to childcare
Kassel (jur). If a woman goes back to work immediately after maternity leave, the father who takes care of the child cannot usually claim parental allowance until the child is 14 months old. Because every month in which maternity benefit was paid is “used up” for the parental benefit claim, the Federal Social Court (BSG) in Kassel decided in a judgment published on Friday, June 30, 2017, from the previous day (Az .: B 10 EG 6/16 R).
According to the Parental Allowance Act, a parent can receive parental allowance for up to twelve months. If the other parent also takes parental leave, the entitlement can extend to the child's 14th month of life. Statutory maternity leave also applies to mothers. This applies six weeks before the calculated birth of the child and up to eight weeks afterwards. The eight weeks can be within two calendar months, but usually there are three. Statutory health insurers are entitled to maternity allowance, which is increased by the employer.
In the event of a dispute, the mother from the Heilbronn area went back to work after the end of her maternity leave in the child's third month. The father took care of the child immediately afterwards in the same month and took parental leave. He applied for parental allowance payments up to the child's 14th month. His wife's maternity leave must have a correspondingly prolonging effect here on parental benefit entitlement.
However, the BSG rejected this. The father is not entitled to parental benefit payments up to and including the child's 14th month of life. If the mother receives maternity benefit up to the child's third month of life, this month is fully counted towards the reference period for the parental benefit.
Here the mother received maternity allowance for three calendar months. Of the 14 months' parental allowance, the father had eleven months - here from the third to the 13th calendar month after the birth.
The Kassel judges referred to a corresponding amendment to the law and therefore gave up their different case law from 2011. fle / mwo