New: Care Leave for a Severely Disabled Child Due to Illness or Accident

As of July 1, 2021, employees may be entitled to care leave of up to 14 weeks for their child if the child is severely impaired due to illness or accident. This entitlement is applicable only if there is also a right to care compensation under the Employment Compensation Act (EOG).

The new legal provision in the Swiss Code of Obligations (OR) titled "Leave for the Care of a Severely Disabled Child Due to Illness or Accident" states the following:

1. Eligibility: Employees are entitled to care leave of up to 14 weeks if they have a right to care compensation under Articles 16n–16s EOG because their child is severely impaired due to illness or accident.
2. Duration of Leave: The care leave must be taken within a framework period of 18 months, starting from the day the first daily allowance is received.
3. Parental Leave Split: If both parents are employees, each parent is entitled to care leave of up to seven weeks. They may choose a different distribution of the leave.
4. Leave Taking: The leave can be taken all at once or on a day-by-day basis.
5. Employer Notification: Employers must be informed immediately about the terms of the leave and any changes.

(Article 329i OR)

Additionally, the Employment Compensation Act (EOG) has been supplemented by Articles 16n to 16s, which regulate the entitlement to compensation for parents caring for a severely disabled child due to illness or accident.

Minor Child

A parental relationship must exist. This relationship is established between the mother and child at birth (Art. 252 Abs. 1 ZGB) or through adoption (Art. 252 Abs. 3 ZGB). The relationship between the father and child is established through marriage to the mother or by acknowledgment, or by court decree (Art. 252 Abs. 2 ZGB), or through adoption (Art. 252 Abs. 3 ZGB).

Furthermore, the child must be a minor. If the child reaches adulthood, there may still be a right to paid leave under Article 329h OR. Please refer to the corresponding blog post.

Severe Health Impairment

The child must be severely impaired. This is the case when:

• There has been a significant change in the child's physical or mental state;
• The course or outcome of this change is difficult to predict or is expected to lead to lasting or increasing impairment or death;
• There is an increased need for parental care;
• At least one parent must interrupt their employment to care for the child.

(Art. 16o EOG)

These conditions must all be met cumulatively. For example, they may apply in the case of a complicated leg fracture. However, if one parent is not employed and can take care of the child, the last of the four conditions is not fulfilled. In this latter case, there is no entitlement to compensation under the EOG, and thus no entitlement to leave under the OR.

Employment

Employment includes both salaried positions and self-employment. This applies also to spouses working in each other’s business and receiving a salary.

Necessity of Employment Interruption for Care

As previously mentioned, there must be a necessity to interrupt employment. The entitlement to compensation and thus to leave exists only when the interruption is necessary for care. This necessity is largely determined by the situation of the person needing care.

Daily Allowance Entitlement

Finally, the entitlement to leave requires that the parent is eligible for daily allowances under Articles 16n ff. EOG (Art. 329i Abs. 1 OR). This should be covered by the aforementioned conditions.

Scope of Leave

The law states a maximum period of 14 weeks, applicable per child and per health impairment. This is not limited to one per year. Therefore, if another child has a health impairment in the same year, or the same child suffers a new health impairment, a new entitlement to leave (and compensation under the EOG) arises.

Even if both parents meet the criteria for leave, the total leave entitlement is 14 weeks for both parents combined, not an additional 14 weeks for each parent. There will typically be a division of this leave, but it does not have to be equal; parents can choose a different distribution. (Art. 16q Abs. 4 EOG).

The entitlement ends prematurely if the conditions are no longer met, but not if the child reaches adulthood during the framework period (Art. 16p Abs. EOG).

Taking the Leave

The leave does not have to be taken immediately or all at once. Instead, it must be taken within a framework period of 18 months from the first day of the daily allowance. The leave can be split and taken weekly, daily, or even half-days.

Compensation Entitlement

The care compensation is paid as a daily allowance. There is entitlement to a maximum of 98 daily allowances within the framework period. For every five daily allowances, an additional two daily allowances are provided.

If both parents are employed, each parent is entitled to a maximum of half of the daily allowances, but the parents can choose a different allocation.

Amount of Compensation

The daily allowance is 80% of the average income earned before the entitlement to care compensation begins, with a maximum of CHF 196.00 per day (as of July 1, 2021).

Additional Effects of Taking Care Leave on Employment

• No Reduction in Vacation Entitlement: Reducing the vacation entitlement of an employee taking care leave is not permissible (Art. 329b Abs. 3 lit. d OR).
• Prohibition of Dismissal: After the probationary period, employers may not terminate the employment as long as the entitlement to care leave exists, for a maximum of six months from the day the framework period begins (Art. 336c Abs. 1 lit. cter OR).

Luzern, June 28, 2021

Simeon Beeler