At the end of November last year, we informed you about an amendment to the Labour Code, effective from 1 January 2020, which introduces at least five weeks of holiday for employees under the age of 33 who are permanently responsible for looking after a child (see here). As anticipated, this amendment has raised questions in the absence of a definition of ‘permanent childcare’. Taking into account the National Labour Inspectorate (NLI)’s opinion, this article provides a closer overview of the issue, especially the interpretation of the term itself and the various situations in which the entitlement to increased holiday could be assessed.
Permanent childcare includes, specifically, the child’s upbringing, health care, nutrition and all-round development. Both parents are entitled to an increased holiday allowance as long as they provide permanent care for the child, regardless of whether or not they live together with the child. However, a parent who does not live in the same household with a child needs to prove that his or her care for the child is significant and not just occasional. The aim of the legislative change was to give more free time and space to unwind for employees who do not have time to rest after work, because of their childcare responsibilities, and not to reward employees who just have the status of ‘parent’.
Permanent care will not cover cases where a court order regulates ‘only’ contact with a child (or only maintenance payments) for one of the parents. Where the parents have alternating custody and care, the assessment of the employee’s entitlement should be easier, as both parents take personal care of the child. Employees who are not a child’s biological parents but who take care of a child based on a final decision of the competent authority (e.g. foster care) should also be entitled to increased leave.
The question of what to do if a child is born on 31 December 2020 remains open and unclear. According to the NLI’s opinion, the concept of ‘permanent childcare’ is a status issue and therefore the related entitlements arise only when the employee proves to the employer that the child is in his or her permanent care. This means that an employee would be entitled to four weeks of leave in 2020 and the entitlement to the remaining week is created after 31 December 2020. We assume that this week will be carried over to 2021. The absence of a definition of the term ‘permanent care’ will also negatively affect those unfortunate cases where a child lives only a few days or months after birth.
As stated above, the assessment of entitlement should take into account all the specifics of a particular case. In order to prevent any problems that may arise in the future, it would be sensible for employers to specify precisely which documents will be required when assessing entitlement to leave or which documents will be recognised, either in the form of its internal rules, regulations or by any other appropriate method.