Legal traineeship and caring for relatives: Legal framework conditions
The legal traineeship (Referendariat) is an important phase in the training of teachers or law graduates in Germany. At the same time, many legal trainees face the challenge of caring for close relatives. This life situation raises numerous legal questions, as the legal traineeship—especially in public service—is subject to specific regulations. The following article provides a comprehensive overview of the statutory and administrative law framework for reconciling a legal traineeship with caring for relatives.
Legal basis of the legal traineeship
Definition and structure
The legal traineeship refers to the practical preparatory service following completion of a university degree, especially for prospective teachers (teacher traineeship) and graduates of the first state law examination. The legal basis is provided by the respective state laws and regulations, such as the laws on legal education of the federal states or laws governing teacher training.
Status of legal trainees
Legal trainees are in a public law training relationship. Many of them hold the position of civil servant on revocation, and, in rare cases, are employed as public sector workers or employees. This decisively influences their rights and obligations regarding personal life circumstances, such as caring for relatives.
Legal concept of caring for relatives
Definition of “caring for relatives”
“Caring for relatives” means supporting, supervising, and providing care to close family members in need of assistance. The legal definition of care is primarily governed by the Social Code Book (SGB XI), which also includes home care.
Term “close relatives”
The Care Leave Act (PflegeZG) and the Family Care Leave Act (FPfZG) offer a comprehensive definition of “close relatives.” These include, in particular, parents, children, spouses and life partners, parents-in-law, as well as grandchildren (§ 7 para. 3 PflegeZG).
Reconciling legal traineeship and family care – Legal provisions
Entitlement to leave under the Care Leave Act
The Care Leave Act generally enables employees to take time off work to care for close relatives. Key points are:
- Short-term work absence: Up to ten days’ leave in the event of acute care needs (§ 2 PflegeZG).
- Long-term care leave: Up to six months’ full or partial leave according to § 3 PflegeZG.
For legal trainees with civil servant status, the provisions apply analogously, provided that no special legislation exists. Many federal states have established civil service regulations that allow for leave and part-time work for care purposes.
Requirements for applying
Leave under the care acts must be requested in writing, in good time, from the employer or training supervisor. Often, a certificate of the relative’s need for care is required.
Continuation of remuneration and salary
During the ten-day leave for acute care, the Care Leave Act provides for continued payment of wages for employees. Legal trainees in a public-law training relationship generally continue to receive their trainee remuneration, unless there are differing civil service regulations.
Family Care Leave Act and part-time models
The Family Care Leave Act additionally offers the possibility of long-term part-time work (reduction of working time to at least 15 hours per week) for up to 24 months (§ 2 FPfZG). Trainees may apply for part-time work according to existing civil service or employment law regulations.
Effects on the legal traineeship
If working hours are reduced, the duration of the traineeship is extended accordingly. The specific arrangements (such as the length, scope, and conditions of part-time work) depend on the regulations of the respective federal state and the individual rules of the training institution.
Care support allowance as wage replacement benefit
During short-term work absence, employees are entitled to care support allowance (§ 44a SGB XI). For legal trainees, it must be examined whether an equivalent benefit – analogous to wage replacement – is granted by the employer or training institution. The basis for entitlement may result from special state law provisions.
Special provisions for civil servants on revocation
Leave and part-time work for family reasons
In many federal states, civil servants on revocation are entitled to leave or part-time employment for family reasons, including caring for relatives (e.g., § 75 LBG NRW). Possible options include:
- Full leave of absence: Up to several months in the event of a relative’s need for care.
- Part-time work during training: Reduction in training time with a proportional extension of the traineeship.
- Interruption or repetition: In exceptional cases, an interruption of training or making up for missed sections may be requested.
Effects on remuneration and health allowance
During full leave of absence, entitlement to trainee remuneration usually ceases. Health allowance claims may remain valid as long as the service relationship is not completely terminated.
Interactions with (employment) contractual regulations
Not all legal trainees are civil servants. If an employment relationship exists, the provisions of the PflegeZG, FPfZG, and other labor law regulations apply without restriction. The legal structure of the employment relationship is relevant, particularly with respect to protection against dismissal and the right to return after the care period.
Legal consequences and practical advice
Certificates and progress of training
For longer interruptions of the legal traineeship, there can be delays in completion. The respective departments or examination boards are required to take into account the reconciliation of family care and training. Disadvantages in certificates or assessment of practical performance are generally to be excluded.
Protection against dismissal and prohibition of discrimination
The Care Leave Act and the Family Care Leave Act contain special protective provisions. During care leave or family care leave, ordinary dismissal is generally invalid (§ 5 PflegeZG, § 9 FPfZG).
Data protection and confidentiality obligations
Applications for leave or part-time work due to the care of a relative are subject to data protection requirements. Information regarding the need for care and the health status of the relatives may only be processed for the statutory fulfillment of leave.
Case law and administrative instructions
Courts and administrative authorities have emphasized in several cases that, where there are legitimate care reasons, the traineeship must be structured as family-friendly as possible. However, specific arrangements vary depending on the legal area, federal state, and employer.
Conclusion
The legal framework for reconciling a legal traineeship and caring for a relative is extensive and complex. While both the Care Leave Act and the Family Care Leave Act establish important standards, civil servants on revocation and legal trainees in employment relationships must also observe state and service law regulations. Early application, meticulous documentation, and knowledge of one’s rights enable better reconciliation of training and family responsibilities.
Frequently asked questions
Can a legal trainee apply for leave to care for a close relative during the legal preparatory service?
According to state law provisions, which are often based on federal law, legal trainees generally have the option to apply for leave from the preparatory service for family reasons such as caring for close relatives. The most relevant laws here are the Care Leave Act (PflegeZG) and the Family Care Leave Act (FPfZG). The regulations differ from state to state, as the design of the legal preparatory service is a matter of state law. Frequently, unpaid leave of up to six months is granted for the duration of care. The application must usually be submitted in time to the relevant administration for legal trainees, together with the necessary evidence (medical report, notification of care level, proof of familial relationship). During leave, there is no entitlement to maintenance allowance. It should also be noted that the traineeship is extended by the duration of the leave and all training sections must be made up. A legal entitlement to leave exists only within the statutory framework; details are regulated by the respective state law and administrative provisions.
What rights does a legal trainee have regarding part-time work in the event of caring for relatives?
In most federal states, law trainees have the opportunity, following a successful application, to complete the legal preparatory service on a part-time basis if there are valid reasons such as caring for a close relative. The relevant rules are based on § 2 para. 3 JAG of the respective states and often the Federal Equal Opportunities Act. Part-time work can be arranged either through a reduction in weekly working hours or as an extension of the training period. During part-time employment, the maintenance allowance can be reduced accordingly. Proof of actual need for care and one’s own obligation to provide care is mandatory. The exact procedure and limits of the scope are detailed in administrative regulations of the judicial administration. There is no unlimited right to part-time work; rather, it is subject to operational requirements, but refusals must be objectively justified.
Does the legal traineeship have to be completely repeated or is the training continued after a care break?
The legal traineeship does not generally have to be repeated in full if there is approved care leave (leave of absence or part-time arrangement). The period during the approved leave or part-time arrangement does not count as training time, meaning the period of preparatory service is extended accordingly. Training periods that were interrupted must be made up for after resuming service so that the prescribed total duration and the respective station times are completed. This is particularly relevant for admission to the second state examination, which requires proof of full completion of all stations. In some cases, justice administrations offer flexible options for making up missed training or special regulations for allocating stations.
Is there entitlement to maintenance allowance during care leave?
During approved full leave of absence for the care of a relative, there is generally no entitlement to maintenance allowance. Payment is suspended for the duration of the leave. Only with a part-time arrangement can a proportional maintenance allowance be paid, depending on the individually performed hours. This largely depends on the part-time model applied by the federal state and the actual reduction in service time. It is advisable to discuss potential financial consequences with the responsible training authority before applying for leave or part-time work, as other social benefits such as ElterngeldPlus, care support allowance, or financial support under SGB XI must be applied for separately if applicable.
How does a care period affect the deadlines for the second state examination?
An approved care period (leave or part-time arrangement) generally interrupts the deadlines relevant for the second state law examination, both for the regular training period and for any maximum time limits. The time of leave is not counted towards the standard duration of the preparatory service or towards the deadlines for registering for the second examination. After returning to the preparatory service, the legal trainee continues training in the current or next station. Those who were already admitted to the examination but are prevented from participating due to care duties may excuse themselves with appropriate proof and take the exam at a later date without this being considered a failed attempt. Details are regulated by the examination office of the relevant federal state.
What legal proof must be provided for care leave?
To apply for care leave as a legal trainee, legally binding proof is required. This typically includes a medical certificate attesting the relative’s need for care, confirmation of the care level (at least care level 1), current proof of familial relationship (e.g., birth/marriage certificate), a simple written statement from the trainee regarding the actual care provided, and, if applicable, evidence regarding the time commitment involved. Depending on the federal state, specific application forms or additional certificates may also be required. The respective judicial administration carefully reviews the application documents and decides at its reasonable discretion.
Can legal trainees continue to receive training-related support or have access to training during care leave?
During a full leave of absence, there is generally no entitlement to training support or participation in training sessions and further education, as the traineeship is officially suspended. Only in the case of a part-time arrangement can participation in training offers be possible, adapted to individual opportunities. Many state justice administrations offer flexible models that enable, at least, participation in individual working groups or online training sessions as long as this is covered by the part-time model. The decision on admission to such measures is made by the relevant training institution, taking into account operational and personal concerns. It is advisable to make individual arrangements with trainers and the administration in advance.