Paternity leave from 1 January 2021

Legal issues related to paternity leave

On 27 September 2020, the Swiss electorate adopted the proposal for paid paternity leave with 60.3 % of votes in favour. In the future, fathers in Switzerland receive two weeks of paid paternity leave within six months of the birth of their child. At its meeting on 21 October 2020, the Federal Council set 1 January 2021 as the date the amendment to the law will come into force.

After the federal popular initiative "For reasonable paternity leave - for the benefit of the whole family" had originally called for a statutory paternity leave of four weeks, the National Council and the Council of States voted in favour of a two-week leave. This indirect counter-proposal led to the withdrawal of the original initiative on condition that the legal basis for a two-week leave would come into force.

 

Entitlement to paternity compensation

As with maternity compensation, this leave will be funded through the Loss of Earnings Compensation Act. 0.05 additional salary percentages are charged for this purpose, half for employers and half for employees. Compensation is paid to fathers who were employed or self-employed at the time their child was born. They must also have been compulsorily insured in the nine months prior to the birth of the child under the OASI scheme and employed for at least five months during this period. Unlike the mother, the father is only entitled to claim if he is the legal father at the time of the child's birth or becomes the legal father within the following six months.

As with maternity leave, the compensation amounts to 80 percent of average earned income prior to the birth of the child, capped at 196 francs per day. In the case of two weeks’ leave, 14 daily allowances are paid, which amounts to a maximum of 2,744 francs. The compensation goes either directly to the employee or to the employer if the latter continues to pay the wage during the paternity leave. The Federal Social Insurance Office estimates the cost of paternity leave when the amendment to the law enters into force at around 230 million francs per year.

 

Entitlement to paternity leave

If the employee is considered to be the legal father of a child at the time of its birth or becomes so within the following six months, he is entitled to paternity leave of two weeks in accordance with Art. 329g para. 1 CO. In difference to the paternity compensation, the paternity leave under the Code of Obligations is consequently not made dependent on further conditions of entitlement. As a result, a father who is not entitled to paternity compensation is probably still entitled to paternity leave.

 

Start and end of the entitlement

Entitlement to paternity leave or compensation begins on the day of the child's birth. The two weeks can be obtained in whole or by the day during the first six months after birth. Employers are forbidden to reduce holidays in return. In difference to maternity compensation, a longer hospitalization of the child does not allow postponement of the start of entitlement.

The entitlement ends upon the occurrence of one of the following five events:

  • Expiration of the six-month time limit;
  • Consumption of the 14 daily allowances or the 2 weeks of paternity leave;
  • Death of the father;
  • Death of the child;
  • Deprivation of paternity.

 

Extension of the notice period and paternity leave in case of change of job

Art. 335c para. 3 CO states that the notice period is extended by the paternity leave days not yet taken if the employer terminates the employment relationship and the employee is entitled to paternity leave before the end of the employment relationship. One reason for this could be the waiver of specific protection against termination in analogy to Art. 336c para. 1 lit. c CO. This seems to be reasonable in view of the long time limit for taking paternity leave, especially since a termination that would be pronounced solely because the employee is taking or wants to take paternity leave would be unfair anyway.

However, the new provisions do not specify whether the employment relationship ends on the last day of paternity leave in the event of an extension of the notice period by the number of days of paternity leave not yet taken or whether it is extended to the next final date in analogy to the regulation under Art. 336c para. 3 CO.

The question of how the entitlement to paternity leave is to be handled if the employee terminates the employment relationship and has not yet taken his paternity leave days (in full) is equally unclear. Furthermore, in the event of termination by the employer, it would have to be possible to mutually agree to waive the immediate taking of the paternity leave and thus an extension of the notice period, especially since the purpose of the paternity leave is contrary to a shortening of time limit for taking it. Consequently, it should be open to the employee in these cases to take paternity leave under the old or new employment relationship.

January 2021 | Authors: Michèle Stutz, Corina Moschen

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