The new paternity leave and allowance
Current Swiss law does not provide for paternity leave. Today, fathers of new-born children can claim paternity leave of at least one or two days within the framework of "normal days off" (art. 329 para. 3 CO). The introduction of paternity leave compensated through the income replacement scheme (EO) was approved in a referendum on 27 September 2020. The provisions on the two-week paternity leave and allowance will enter into force on 1 January 2021. Since the requirements for the entitlement to paternity leave and allowance differ, an employee may be entitled to the leave but not to paternity allowance.
1. Entitlement to paternity leave – art. 329g CO
Under the new provision to be introduced in the Swiss Code of Obligations, only the legal father of a new-born child is entitled to paternity leave. The legal relationship to the child is created by marriage to the mother, by recognition of paternity or by a court judgment. It is irrelevant whether the child lives in Switzerland or whether the child’s father and mother are in a relationship. In the case of adoption, there is no entitlement to paternity leave.
Fathers are entitled to two weeks' paternity leave. This leave must be taken within six months of the birth of the child. After the six month’ period, any unused leave days are forfeited. Leave can be taken on 14 consecutive days (including weekends) or on a daily basis (10 days). These days of leave do not replace the holiday entitlement, which may not be reduced by the employer. There is no protection against dismissal (in contrast to maternity leave) during the leave but the period of notice is extended by the amount of untaken leave days. Furthermore, the provision on paternity leave is partly compulsory, i.e. it may only be deviated from if it is more favourable to the employee.
2 Entitlement to paternity allowance based on EO
At the time of the birth of the child, the legal father must meet one of the following requirements in order to receive paternity allowance:
- be employed or self-employed
- work in the wife's business and receive a cash wage
- be unemployed and receive a daily allowance from unemployment insurance
- do military service
- be unable to work because of illness, accident or invalidity and therefore receive daily allowances from a social or private insurance.
In addition, the father must have been compulsory insured with the AHV in the nine months immediately preceding the birth of the child (reduced period in case of premature birth) and must have been working for at least five months during this period. If the father is a Swiss or EU/EFTA citizen, periods of employment in an EU/EFTA state can also be taken into account.
Since paternity leave can be taken flexibly during the six months following the birth, entitlement to paternity allowance does not cease when the father resumes work, as is the case with maternity allowance. As soon as the leave has been taken in full or the framework period has expired, the respective allowance amount can be claimed with the responsible compensation fund.
The paternity allowance for the leave taken is paid as a daily allowance. The father is entitled to a maximum of 14 daily allowances within the framework period of six months. The calculation of the number of daily allowances depends on the number of leave days taken. For every 5 leave days taken, 2 daily allowances are added. As in the case of maternity leave, the compensation amounts to 80 per cent of the average earned income before the birth of the child, up to a maximum of 196 Swiss francs per day (maximum 2,744 Swiss francs). To finance the paternity allowance, the EO contribution rate will be increased from 0.45 to 0.5 per cent as of 1 January 2021.
In the event that an employee is entitled to paternity leave but not to the compensation, the employer will probably continue being obliged to compensate according to the usual company or industry practice (minimum 1-2 days).
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: email@example.com