Paid childcare leave for parents of seriously ill or injured children
Working parents of seriously ill or injured children currently have no choice but to take unpaid leave, take sick leave themselves or temporarily give up work altogether. To ease the burden on these families, the Swiss Code of Obligations (CO) and the Income Compensation Act will introduce new provisions on up to 14 weeks’ paid childcare leave to allow employees to care for seriously ill or injured children. The new provision will enter into force on 1 July 2021.
1. Paid childcare leave
Parents whose child has an increased need for care due to a serious health impairment are entitled to care allowance and leave for a maximum of 14 weeks if certain conditions are met. The connecting factor for the parent-child relationship is the child relationship according to article 252 of the Swiss Civil Code. The marital status of the parents is therefore irrelevant.
One condition is that the child’s health must be seriously impaired. A child's health is seriously impaired if (i) a drastic change occurred in his or her physical or mental condition, (ii) the course or outcome of this change is difficult to predict, permanent or increasing impairment or death is to be expected, (iii) there is an increased need for care by the parents and (iv) at least one parent has to take a break from work to care for the child. Minor illnesses and minor consequences of accidents (e.g. bone fractures) are excluded and the extent of the need for care is essentially dependent on the age of the child in addition to the severity of the health impairment.
The entitlement to care allowance and leave arises per illness or accident event. If a child falls ill with another serious illness, a new entitlement arises. Illnesses related to the main illness do not count as new illness. However, a relapse that occurs after a longer symptom-free period counts as a new event. A further claim may also arise in the same family if a second child has a serious accident or falls ill, or if several children are seriously injured in the same accident. If a child is born with a serious illness, there is no entitlement to the care allowance. In this case, the mother is entitled to maternity allowance. However, an entitlement to childcare allowance may arise following maternity allowance if the conditions for this are met.
Another condition that must be fulfilled in order for a parent to be entitled to paid childcare leave is that he or she must, in principle, be (self-)employed or work in their spouse's business and receive a cash salary. Moreover, the parent claiming paid childcare must take time off from work to care for their child. Childcare allowance and leave are also granted if one or both parents work part-time.
The loss of earnings during the childcare leave is compensated by daily allowances via the loss of earnings compensation (EO). The daily allowance amounts to 80 per cent of the previous salary and is limited to a maximum amount of CHF 196 per day. Parents are entitled to a maximum of 98 daily allowances. The entitlement to the allowance also exists on non-working days, e.g. Saturday and Sunday. Therefore, two additional daily allowances are paid for every five working days, meaning that a maximum 98 days are compensated, but only a maximum of 70 actual days of leave can be taken. The allowance and leave must be taken within a framework period of 18 months which begins on the day for which the first daily allowance is drawn.
The leave may be taken in one piece or by the day. If both parents are employed, each parent is in principle entitled to a maximum of 7 weeks childcare leave and half of the daily allowances. However, the parents have the possibility to agree on a different division of the childcare leave. This agreement is sufficient to change the division, it does not have to be approved by the employer. It is also possible for the parents to take the leave they are entitled to at the same time.
2. Further rights and duties
To best protect the employer's interests, the employer must be informed of the modalities for taking leave, i.e. the division between the parents and the planned days of attendance, as soon as they are determined and continuously in case of adjustments.
During childcare leave pursuant to art. 329i nCO, the employee is temporarily protected from dismissal (art. 336c para. 1 let. cbis nCO). The protection lasts as long as the entitlement to leave exists but no longer than 6 months from the day for which the first daily allowance entitlement exists.
Furthermore, an employee's holiday entitlement may not be reduced by taking childcare leave. Finally, 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.
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