Laws and regulations

A care situation often comes as a surprise and is associated with a wide range of legal and organizational issues. HR managers and executives are often the people to contact when employees have questions about the need for care. In order to find the best possible solution for employees in an emergency, it is helpful for employers to know the relevant legal and tax aspects. This section is intended to provide an initial overview.

The social law provisions on the subject of the need for care are regulated in the German Social Code: The relevant books are those on long-term care insurance (SGB XI), health insurance (SGB V), accident insurance (SGB VII), pension insurance (SGB VI), severe disability (SGB IX) and social assistance (SGB XII).

Long-term care insurance

Care insurance covers part of the care costs. The amount of the insurance benefit depends on the assessment of the individual care needs by the responsible medical service of the health insurance company. You can find detailed information on the currently applicable assessment criteria and long-term care insurance benefits in the info box opposite. (see info box)

Care Strengthening Act

The Care Strengthening Act (PSG) to improve the care situation in Germany consists of two parts: PSG I has been in force since January 1, 2015, while PSG II came into force on January 1, 2016. From January 1, 2017, the new procedure for assessing the need for care and the changeover from 3 care levels to 5 care grades will come into effect.

Care Strengthening Act I

PSG I extended the benefits for outpatient and inpatient care as well as for care at home. With its introduction, the Act to Improve the Compatibility of Family, Care and Work also came into force, which regulates the leave of absence options for family carers in addition to the Care Leave Act and Family Care Leave Act.

Care Strengthening Act II

The PSG II redefines the need for long-term care: For the first time, all those in need of care will have equal access to care services - regardless of whether they suffer from physical ailments or dementia. Insured persons can also receive comprehensive advice from the care advisors of their health/care insurance fund.                                                             

From 2017, a new assessment procedure (NBA) will be used to better determine people's individual need for care, taking into account physical, mental and psychological skills in equal measure. Based on six criteria, the concept of the need for care will also be redefined from 2017. Instead of the previous three care levels, supplemented by care level 0 for people with limited everyday skills, there will then be five care levels.                                

Furthermore, outpatient care will be strengthened from 2017 with additional funding for care-related expenses such as home adaptations. In addition, family caregivers will be better covered by pension, unemployment and accident insurance The changes in PSG II aim to make it easier to use outpatient care services. However, outpatient care solutions generally also require greater commitment from relatives. As a result, the demand for working conditions that make it possible to reconcile work and care is expected to increase further from 2017.

Exemption regulations for employees

The Caregiver Leave Act, which has been in force since July 1, 2008, and the Family Caregiver Leave Act, which has been in force since January 1, 2012, are intended to make it easier for relatives to reconcile work and home care. The laws provide for several forms of leave of absence for working family carers.

Employment of caregivers

If a caregiver is needed for the private household to care for a relative, legal requirements must be observed. Among other things, questions regarding the appropriate employment relationship as well as social and liability insurance must be clarified.

The decision as to whether a caregiver should be marginally employed or self-employed is based on the amount of time spent on the job and the ideas of all parties involved on how the collaboration should be structured, e.g. on the question of how flexible the care should be.

Agencies for the placement of family caregivers, outpatient services, the Minijob Center and the Federal Employment Agency are possible points of contact when it comes to planning the employment of caregivers in private households.

Private households can receive tax relief for care and support services for relatives in need of assistance or for household-related services. The same applies to childcare expenses, household activities and work carried out by tradespeople. The tax relief is regulated in the Family Benefits Act of 01.01.2009.

Health insurance

Certain services for financing care are also provided by the health insurance funds. They are responsible for care aids (Section 33 SGB V) and home nursing care (Section 37 SGB V).

Home nursing care is provided in cases where it helps to avoid or shorten hospital treatment or when treatment in hospital is necessary but not feasible. As a rule, it is approved for up to four weeks per case of illness, in justified exceptional cases even longer. Home nursing care also includes treatment care and outpatient palliative care.

Introduction of an offer for employee assisstance

Internal or external offer

Employers have the opportunity to relieve the burden on employees by offering advice and placement services. An external service provider can provide employees with care responsibilities with comprehensive advice on issues relating to the organization of care and support them in their search for care solutions. Because it is not guided by the interests of the health and care insurance funds, the support is provided entirely in the interests of those affected and neutrality is guaranteed.                                                   

As the topic of the need for care is stressful, employees sometimes find it difficult to address this issue at work and ask for advice. This shame can be an inhibition threshold and may be a reason not to take advantage of internal advice services. An external support service, on the other hand, makes it easier for employees to make contact because they can be sure that their employer will not find out in detail which issues they are seeking help with. However, the offer of an internal advice center or a person of trust who is available to answer questions about the need for care also signals a care-sensitive corporate culture to employees and is perceived as a relief.           

When designing an offer for employee assisstance , companies have every freedom to establish their own offers in line with their culture, their own skills and their financial resources.

No non-cash benefit

Consultancy and agency services provided by a service company do not have to be treated as a non-cash benefit for tax purposes if they can be used by all employees in the company and are paid for by the employer on a flat-rate basis. This is stated in the wage tax guidelines on wages (LStR 2015, R 19.3, paragraph 2, no. 5):

"(1) Wages are the consideration for the provision of individual labor. (...)

(2) The following are not to be regarded as consideration for the provision of individual labor and therefore not as wages (...)

(5) lump-sum payments by the employer to a service company that undertakes to advise and support all employees of the client free of charge in personal and social matters, for example by arranging caregivers for family members."

If the employer is not informed which employee has made use of which consulting or placement service in detail, payments are not attributable to any individual and are therefore not a non-cash benefit.

Co-determination of the works council during the introduction

The introduction of individual company support measures for employees who provide care may require the co-determination of the works council. The applicable co-determination rules must be observed when introducing special working time or leave models for family caregivers or when setting up an advice and placement service. Section 87 of the Works Constitution Act (Betriebsverfassungsgesetz) stipulates co-determination rights:

1. The works council shall, insofar as a statutory or collectively agreed regulation

does not exist to have a say in the following matters: (...)

2. the start and end of the daily working time including breaks and the distribution of working time over the individual days of the week;

(...)

5. establishing general vacation principles and the vacation schedule as well as determining the timing of vacation for individual employees if no agreement is reached between the employer and the employees involved;

(...)

8. Form, organization and management of social institutions whose scope is limited to the company, the enterprise or the group; (...)"

Even if there is no explicit co-determination obligation when cooperating with an external service provider, it is highly recommended to involve the works council in the interests of good internal communication.