Work and childcare: Who pays the wages?

Questions and Answers on the obligation of wage continuation and compensation for loss of income due to childcare during the COVID-19 pandemic

In March 2020, all schools and kindergartens in Switzerland have been closed for eight weeks. A further school closure is not unlikely. In that case, hundreds of thousands of children would have to stay at home again. But who pays the wages of the employees if they have to look after their children at home?

In our FAQ we try to give you an overview of the most frequent questions.

 

Q: Can workers stay at home to look after their children if all schools and kindergartens are closed by order of the authorities?

A: If no other care can be organised, the employee must be given the opportunity to care for his children at home, due to the duty of care.

 

Q: How long can workers stay at home for childcare?

A: In principle, employees may be absent from work for up to three days to care of sick children (Art. 36 para. 2 LA). After that, the employee has the duty of loyalty to the employer to organise substitute care for his children. In principle, this regulation also applies during the COVID-19 pandemic.

In the current situation, however, this poses a major challenge for employees, because asking grandparents for childcare is out of question as they are considered particularly vulnerable individuals (persons over 65 years of age or with existing previous illnesses) and contact with fellow human beings must be avoided whensoever. It is therefore to be expected that courts would not insist on the three days in the event of a dispute but would consider a few more days as appropriate. At present, great understanding is required on both sides in any case.

 

Q: As an employer, do I still have to pay wages if my employees look after the children because the schools are closed?

This question remains controversial. During the swine flu epidemic, the Labour Court of Zurich ruled that parents are not entitled to continued payment of wages during childcare because of a closed day-care centre, because the prevention of work was not due to the employee's personal circumstances (the employee's own child was not ill), but to an epidemic-like situation.

However, we are of the opinion that by providing childcare, parents are fulfilling a legal obligation because children (depending on their age) cannot be left on their own (cf. Art. 276 CC). This would mean that the employee is prevented from working through no fault of his/her own, so that he/she is entitled to continued payment of wages for up to three working days according to Art. 324a CO (as long as his/her claim has not already been exhausted, e.g. due to his/her own illness or an accident). This view is, however, being disputed and there are good arguments to take the contrary position. Thus, an uncertainty will remain until the question has been decided by courts.

In addition, the wage is always to be paid to the employee if he works from home. This is also the case if the performance of the employee in the home office with the children at home should be somewhat limited.

 

Q: Can I bring my children to work if I can't work from home and don't have childcare?

This is not regulated by law. The employer can decide within the scope of its right to issue instructions. The current exceptional situation requires creative solutions.

 

Q: Assuming that the authorities recommend – as they did in March 2020 – people who do not work in the primary care sector should not send their children to the day care centre, even if it is open. Is there a right to continued payment of wages during this period?

A: The answer to this question depends on whether the employees can do their work at home. If the work can be done from home, wages are also due. This probably also applies if the service is somewhat limited due to childcare. If there is a severe restriction (e.g. limited work to four instead of five days) or no performance can be provided at all, there is generally no entitlement to continued payment of wages (without overtime being compensated or holidays being taken) because the decision to care for the children at home is made by the parents. However, employers should show flexibility as far as possible on the basis of their duty of care, for example by allowing work to be performed at times other than normal.

 

Q: Are parents who have to look after their children at home entitled to Federal compensation for loss of income?

A: Yes, in addition to individuals in quarantine and self-employed individuals, parents with children under the age of 12 who have to interrupt their employment because the third-party care of the children is no longer guaranteed are in principle entitled to compensation.

The prerequisite for this is that the parent is compulsorily insured with the OASI (resident in Switzerland or employed in Switzerland) and is employed or self-employed. In addition, there must be no continued payment of wages by the employer and no other (social) insurance may provide benefits.

However, this entitlement is only valid if the need for care is due to measures to combat coronavirus. Consequently, schools, kindergartens and day-care centres must be closed by order of the authorities or the previous care by a single person is no longer possible because this person had to go into quarantine.

Young people with a health impairment receiving an intensive care supplement of the Disability Insurance (DI) are entitled to this compensation until their 18th birthday, young people in a special school that has been closed down until their 20th birthday. In the case of young people receiving integrative training at a regular school with no payment of an intensive care supplement, there is no compensation after their 12th birthday.

 

Q: Are parents of children who are looked after in day care centres who have to look after their children at home also entitled to Federal income compensation?

A: Yes, if the day care centre is closed by official order and the employer does not continue to pay wages. If the nursery is not closed, but the parents do not want to take the children there despite the available place, there is no entitlement to compensation for loss of earnings.

 

Q: Where do I have to apply for Federal compensation for loss of earnings?

A: Compensation is not automatic but must be applied for at the relevant compensation office using Form 318.755 - Registration Corona compensation for quarantine and loss of third-party care from 17 September 2020. Benefits are paid retroactively on a monthly basis by the OASI compensation offices.

 

Q: What is the amount of Federal compensation and how long is a claim valid?

A: The compensation amounts to 80% of the average gross income, but not more than CHF 196 per day. The entitlement arises from the 4th day after the loss of work due to care. If a care solution has been found, the quarantine obligation has been lifted or the care facility has been reopened, there is no longer an entitlement.

For self-employed individuals who already received compensation under the legal provisions in force until 16 September 2020, the basis for calculating compensation from 17 September 2020 on remains the same.

 

Q: Does the employer have to top up the wage to 80% of the actual wage if the employee receives compensation for loss of income?

A: No. The claim to compensation for loss of earnings only exists if the employer is not obliged to continue to pay wages.

 

Q: Is the Federal compensation also paid when the children have school holidays?

A: In principle, there is no right to compensation during school holidays. However, there is a claim if the originally engaged care solution is not available due to quarantine.

November 2020 | Authors: Alexandra Geiger, Stefanie Fuchs

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