Art. 329h CO - The new paid care leave
The Swiss Code of Obligations (CO) will introduce a new provision on paid leave to enable employees to care for health impaired family members or life partners. The employer will be obliged to continue to pay wages in the event of brief absences of a maximum of three days per event, but no more than ten days per year. The new provision will enter into force on 1 January 2021.
1 Care leave for short-term absences
The new art. 329h CO introduces a leave of absence for the care of family members and life partners if there is a health impairment. Family members are relatives in ascending and descending line and siblings as well as spouses, parents-in-law and life partners who have lived in the same household as the employee for at least five years. The health impairment does not only include illness or accident but also, for example, a disability.
Furthermore, the necessity of care must be given. On the one hand, this depends on whether other people could take over the care, e.g. other family members. The family member must be available and able to intervene (e.g. because they live nearby). The fact that another person is entitled to care leave does not in itself exclude the entitlement. On the other hand, the ill or injured person must be in need for care which is more likely to be the case with a minor than with an adult.
The duration of the leave is three days per event. The entitlement applies only once per impairment, even if incidents occur repeatedly in the case of long-term illnesses, which require care each time. The annual upper limit is ten days in total during a year of service. Consequently, a person can take care of different family members and/or their life partner if all absences together do not exceed ten days.
2 Obligation to continued payment of wages
If the above conditions are met, the employer is obliged to continue to pay wages during the care leave. The employee must be able to prove the claim but a medical certificate is not required by law.
The provision on paid care leave is partly compulsory, i.e. it may only be deviated from if it is more favourable to the employee.
3 Relationship to art. 324a CO
The three-day paid leave of art. 329h CO is granted independently of other provisions. For the care of children and spouses, art. 324a CO provides for paid care leave if all requirements are met (e.g. the employee must be unable to work and the annual absence limit must not yet been used up). A person may thus take leave in accordance with art. 324a CO without using up the leave in accordance with art. 329h CO or take it additionally, after using up the leave of art. 329h CO.
4 Amendment of art. 36 ArG
The care leave for sick children up to three days per event is also reflected in art. 36 of the Swiss Federal Employment Act (ArG), although without regulating the obligation to continued payment of wages. Art. 36 ArG will be extended to family members and general health impairments, and further introduce an upper limit of ten days in order to be in line with art. 329h CO. However, this limit will not apply to children.
Marco ToniPartner Attorney at law
Marco Toni, attorney at law, is a partner in our Zurich office. He focuses on domestic and international M&A transactions, private equity, corporate governance and general corporate, stock exchange and capital markets laws.T: +41 43 434 67 15 M: +41 79 557 62 15 E: firstname.lastname@example.org