Swiss employment law recognizes various forms of leave in addition to vacations. In recent years, the forms of leave have been significantly expanded and have made a significant contribution to work-life balance and gender equality. This article provides an overview of these newest forms of leave.
Short leave to care for relatives (art. 329h CO)
Since 1 January 2021, art. 329h CO has granted employees the right to paid short-term leave to care for relatives. Employees can be absent from work for up to three days per case and a maximum of 10 days per year to care for relatives in need of care and organize further care.
The term relatives includes all relatives in the ascending and descending line, siblings, spouses, registered partners, parents-in-law, stepchildren and cohabiting partners if the household has existed for at least five years.
In order to qualify for paid short-term leave to care for relatives, a health impairment must also exist. This includes any impairment and is not limited to illness or accident. In particular, care due to advanced age may also entitle you to take short-term leave.
Furthermore, the care for relatives must be necessary. The necessity can be more easily affirmed in the case of minors or small children. If there is the possibility of care by other family members and the care by them is reasonable, the necessity must be denied.
The submission of a medical certificate is not required by law, but it is up to the employee to prove the conditions of the leave entitlement. In practice, this proof should usually be in the form of a medical certificate.
Leave to care for a child whose health is seriously impaired by illness or accident (art. 329i CO)
Since 1 July 2021, employees with a child with a serious health condition have been able to interrupt their employment for 14 weeks without risking a loss of earnings or the loss of their job.
Parents of a child with a serious health condition who are also entitled to care allowance under the Loss of Earnings Compensation Act (LECA) are eligible to care leave. The decisive factor is that a legal parent-child relationship exists in accordance with the Swiss Civil Code. If both parents are employees, each parent is entitled to a maximum of seven weeks' care leave. However, it is possible to divide the leave differently between the parents and is not dependent on the employer's consent.
A prerequisite is a serious health impairment of the child that requires long-term medical treatment (lasting several months). A serious health impairment exists if:
- a drastic change in the physical or mental condition has occurred (lit. a);
- the course or outcome of this change is difficult to predict or a permanent or increasing impairment or death is to be expected (lit. b);
- there is an increased need for care by the parents (lit. c); and
- at least one parent must interrupt employment to care for the child (lit. d). In contrast to short-term leave for the care of relatives (see above), the need to interrupt gainful employment must be documented by means of a medical certificate.
The care leave must be taken within a framework period of 18 months and begins on the day on which the first daily allowance is paid. It can be taken on a weekly or daily basis. Any vacation or vacation days taken before the start of the framework period may not be counted towards the duration of the framework period. However, taking vacation during the framework period does not lead to an extension of the framework period.
In contrast to maternity and parental allowance, care allowance is not dependent on a period of insurance or employment and amounts to 80% of the average earned income, up to a maximum of CHF 220 per day.
As long as there is an entitlement to care leave, but for no longer than six months from the start of the framework period, a protection period applies in the event of dismissal by the employer. Notice of termination given during this protection period is therefore null and void. If it was given before this period, it is suspended during this period and only continues after the end of the protection period. In addition, no reduction in vacation entitlement may be made.
See also: Blog post of 27 November 2020 on care leave
Leave for the other parent (art. 329g CO)
According to Art. 329g CO, since 1 January 2021 working fathers and, since 1 January 2024, working wives of mothers in Switzerland have been entitled to two weeks of parental leave (10 working days for a 100% workload). This parental leave must be taken within six months of the child's birth and can be taken on a weekly or daily basis.
The person who is the legal father of the child at the time of birth or who becomes the legal father within six months of the child's birth or, in the case of same-sex couples, is the legal other parent of the child at the time of birth, is entitled to claim. The legal father-child relationship is established by marriage to the mother, by acknowledgment of paternity or by a court judgment. In the case of same-sex couples, the child's relationship with the other parent arises if the mother's wife is married to the mother at the time of the child's birth and the child was conceived through a sperm donation in accordance with the Federal Act on Medically Assisted Reproduction.
The purpose of parental leave is to enable the other parent of the child to establish a relationship with the newborn child in the first days, weeks or months after the birth. In view of the purpose of parental leave, it is relevant in this respect whether the other parent shows a willingness to establish a parent-child relationship. However, parental leave may not be denied solely because the other parent has no relationship with the mother or the child lives abroad.
There are no further requirements for entitlement to parental leave. In particular, in contrast to the parental allowance under the LECA, the entitlement to parental leave is not linked to a minimum duration of employment.
The loss of income during parental leave is compensated by the payment of parental allowance. The allowance corresponds to 80% of the average earned income, up to a maximum of CHF 220 per day. If the parent does not meet the requirements for entitlement to parental allowance, they are only entitled to continued payment of salary during parental leave if the employer has undertaken to do so. Otherwise, the salary entitlement only exists for the period of "normal leave" within the meaning of art. 329 para. 3 CO, which generally lasts one to two days. If the parental allowance provides the parent with an income of less than 80% of the salary they received before the start of the leave, the employer is not obliged to supplement the parental allowance.
In contrast to maternity leave, there is no protection period during parental leave, meaning that a notice of termination given during parental leave is valid. However, it may be considered a retaliatory dismissal and therefore potentially abusive.
If the employer terminates the employment relationship and the employee is entitled to parental leave before the end of the employment relationship, the notice period is extended by the days of leave not yet taken. In addition, the employer may not reduce vacation entitlement due to parental leave.
See also: Blog post of 4 June 2021 on paternity leave
Maternity leave, especially in the event of the hospitalisation of the newborn child (art. 329f CO)
According to art. 329f para. 1 CO, since 1 July 2005, employees have been entitled to maternity leave of at least 14 weeks after giving birth. Maternity allowance is based on the LECA.
Since 1 July 2021, the mother is also entitled to an extension of the duration of the entitlement to maternity leave and compensation if her child has to stay in hospital at the time of birth, by the duration of the newborn's hospital stay, but by a maximum of 56 days.
The conditions for the extension of maternity leave are that (1) the newborn remains in hospital for at least two weeks immediately after the birth and (2) the mother had already decided at the time of the birth to return to work after the end of her maternity leave.
During the extended maternity leave pursuant to art. 329f para. 2 CO, there is a protection period pursuant to art. 336c para. 1 lit. cbis CO, i.e. notice of termination cannot be validly given before the end of the maternity leave. In addition, the employer may not reduce vacation time due to maternity leave (art. 329b para. 3 lit. b CO).
Leave in the event of the death of the mother or the other parent (Art. 329gbis CO/Art. 329f para. 3 CO)
As of January 1, 2024, a further form of leave has been added to the Code of Obligations, which is intended to enable the surviving parent to extend the maternity leave or parental leave to a total of 16 weeks in the event of the death of the mother or the other parent.
The new regulation grants the surviving father or mother's wife an additional leave entitlement of 14 weeks in the event that the mother dies on the day of childbirth or within 14 weeks of the birth, in addition to the two-week parental leave in accordance with Art. 329f CO, which is to be compensated via the income compensation scheme. This leave must be taken immediately from the day of the mother's death and consecutively. The entitlement exists if the legal child relationship was established on the date of the mother's death or in the 14 weeks thereafter.
In addition to her maternity leave of 14 weeks, the mother is also entitled to two weeks' leave and 14 additional daily allowances if the child's other parent dies within six months of the birth.
During the extended parental leave in the event of the mother's death, the employee is protected against dismissal (Art. 336c para. 1 lit. cquinquies CO). The mother is also protected from dismissal when taking leave in the event of the death of the other parent between the start of the leave and the last day of leave taken, but for no longer than three months after the end of the 16-week restricted period (Art. 336c para. 1 lit. cter CO). In addition, the employer may not reduce the amount of vacation due to the leave taken.
Adoption leave (Art. 329j CO)
Since 1 January 2023, employees have also been entitled to two weeks' adoption leave, which can also be taken on a weekly or daily basis.
Employees who meet the requirements for adoption allowance are eligible to adoption leave. The following conditions must be met cumulatively:
- A child of less than four years of age must have been taken in for adoption; however, it is not a prerequisite that the adoption has already taken place at the time the leave is taken.
- The employee must have been compulsorily insured under the Swiss social security scheme (AHV) for nine months prior to the adoption of the child and have been gainfully employed for at least five months during this period.
- At the time the child is taken in, the person concerned must be an employee or self-employed or work in the spouse's business in return for a cash salary.
In the case of joint adoption, both parents must fulfil these requirements and there is only one entitlement to one allowance. The parents also have the option of splitting their leave entitlement, whereby the leave entitlement of two weeks is a total entitlement. Parents can therefore take a maximum of two weeks' adoption leave in total. Simultaneous entitlement is also excluded. If the parents divide the leave between them, both parents are entitled to an adoption allowance.
Even if several children are adopted at the same time, there is only one entitlement to adoption leave and allowance. Adoption leave does not apply to the adoption of stepchildren.
Adoption leave must be taken within a framework period of one year, which begins with the adoption of the child (Art. 329j para. 2 CO).
During adoption leave, compensation is paid in the form of a daily allowance. There is a maximum entitlement to 14 daily allowances. As with parental and maternity compensation, the daily allowance amounts to 80% of the average earned income, up to a maximum of CHF 220 per day.
As with parental leave, there is no protection period during adoption leave (see Art. 336c para. 1 CO). However, the employer cannot reduce vacation entitlement due to adoption leave (Art. 329b para. 3(e) CO).
See also: Blog post from 11 April 2022 on adoption leave
Outlook: Menstruation leave?
Swiss law does not provide for general menstruation leave. However, the city of Fribourg recently became the first Swiss municipality to introduce menstruation leave for its employees. In future, employees of the city of Fribourg who suffer from severe menstrual cramps will be able to take paid leave of up to three days per month without having to provide a doctor's certificate. Menstruation leave is also being discussed in the city of Zurich and Lausanne. There are differing opinions on menstruation leave: while some are in favour of its introduction and argue that it incorporates an everyday reality for many women in the world of work and removes an existing taboo, others see it as discriminatory and expensive. After all, women who suffer from severe menstrual pain already have the option of staying away from work. Only time will tell whether menstruation leave will find its way into Swiss law and private employment relationships in the near future.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
