New: Paid Leave for Family Care

As of January 1, 2021, employees are entitled to up to 10 days of paid leave per year to care for a family member and/or life partner with a health impairment.

The new provision in the Swiss Code of Obligations (CO) under the title "Leave for Family Care" is as follows: “The employee is entitled to paid leave for the time necessary to care for a family member, or a life partner, with a health impairment; however, the leave shall not exceed three days per event and a maximum of ten days per year” (Art. 329h CO).

As part of this amendment, the Employment Act (EmpA) has also been adjusted and supplemented accordingly: “3 The employer shall grant the employee leave to care for a family member or life partner with a health impairment upon submission of a medical certificate; the leave is limited to the time necessary for care but shall not exceed three days per event. 4 Except in the case of children, care leave is limited to a maximum of ten days per year” (Art. 36 para. 3 and 4 EmpA).

Definition of Family Members

The term "family members" is defined in accordance with the Swiss Old Age and Survivors' Insurance Act (AHVG). Certain individuals are treated as relatives under the AHVG, meaning the following groups are included (see Art. 329h CO in conjunction with Art. 29septies para. 1 AHVG):

• Relatives in the ascending and descending line (parents, grandparents, children, grandchildren, etc.);
• Siblings;
• Spouse;
• Registered partner;
• Parents-in-law;
• Stepchildren;
• Life partner, provided a joint household has existed for at least 5 years.

Necessity of Care

The entitlement to paid leave only applies if the care is necessary. This necessity depends significantly on the situation of the person in need of care, as well as the availability, feasibility, and reasonableness of care by another person. The law requires a health impairment of sufficient intensity for the family member to depend on care. Additionally, the impairment must be unforeseen, meaning that advance arrangements for care could not have reasonably been made. Furthermore, the employee’s entitlement to paid leave lasts only as long as is required to organize alternative care.

Extent of Paid Leave for Family Care

The law allows for a maximum period of three days per event, intended to give employees time to arrange alternative care. If other care can be organized sooner, the entitlement to paid leave generally ends. In practice, proving this may be difficult.

If multiple care events occur within the year, the total entitlement is limited to a maximum of 10 days. Notably, the Employment Act excludes care for children from this 10-day annual limit. It should also be noted that a further legal provision related to the care of children with severe health impairments will take effect on July 1, 2021. We will keep you informed of any updates.

Salary Entitlement

When eligibility requirements are met, the employee is entitled to regular pay during this leave period, in accordance with Art. 324a CO.

Medical Certificate

The Employment Act (but not the CO) specifies that the employer must grant leave upon presentation of a medical certificate. This certificate must confirm the family member’s need for care, not the employee’s inability to work, as is often mistakenly assumed. Typically, the employee is not unfit for work due to the need to provide care.

Although the statutory text might suggest otherwise, the medical certificate does not need to be available at the moment the employee intends to take the care leave.

Since the requirement for a medical certificate is mentioned in the EmpA but not in the CO, this may lead to a situation where only employees subject to the Employment Act are obligated to provide such documentation. Court practice will need to clarify this.

Lucerne, May 3, 2021

Signed,
Simeon Beeler