Happy Father's Day - Paternity Leave

In the spirit of equality, the Swiss electorate voted last year in favour of the introduction of paid paternity leave, which came into force on 1 January 2021.

This welcome new development will be explored in more detail below to mark Father's Day.

Paternity leave 

New fathers are now entitled to 2 weeks' paternity leave on the basis of Art. 329g of the Swiss Code of Obligations "CO", with the option of taking it on a weekly or daily basis.

The father is entitled, but not obliged, to actually take paternity leave. This right may neither be contractually waived nor reduced.

Compensation 

Paternity allowance is paid as a daily allowance and amounts to 80% of the average earned income, but not more than CHF 196 per day. The entitlement is for a maximum of 14 daily allowances (cf. Art. 16k para. 2 Income Compensation Act, "ICA").

Pursuant to Art. 16j ICA, paternity allowance may only be collected during a qualifying period of 6 months and is therefore earmarked for a specific purpose. The qualifying period begins on the day of the birth of the child.

Prerequisites 

Legal relationship to child

The claim exists if the father is the child's legal father at the time of birth or becomes the child's legal father within the following six months (cf. Art. 329g para. 1 CO).

According to Art. 252 para. 2 CO, the legal relationship of father and child arises by virtue of marriage to the child's mother, by acknowledgement of the child or by judicial determination of paternity.

Self-employment or employment

At the time of the birth of the child, the father must be self-employed or employed.
If the father was unemployed at the time of the child's birth or if he was unable to fulfil the required minimum period of employment due to unemployment, he is nevertheless entitled to claim pursuant to Art. 29 para. 2 Ordinance to the ICA ('OICA'), provided that he received a daily allowance from the unemployment insurance until birth or is in service within the meaning of Art. 1a ICA at the day of birth fulfils the contribution period for the receipt of daily allowances from the unemployment insurance on this day.

Compulsory insurance for 9 months

In addition, the father must have been compulsorily insured within the meaning of the Federal Law on Old Age and Survivors' Insurance for nine months immediately prior to the birth and must have been gainfully employed for at least five months during this period.

The required insurance period is reduced if the child is born before the end of the 9th month of pregnancy.  

Compensation in the event of incapacity for work 

If the father of the child was unable to fulfil the required minimum period of employment due to incapacity for work, he is nevertheless entitled to compensation under Art. 30 OICA if he was receiving compensation for loss of earnings from a social or private insurance scheme up to the time of the birth or if he was in employment at the time of the birth but had already exhausted his entitlement to continued payment of wages before that time.

Extension of the notice period and impermissible holiday reduction

If the employer terminates the employment relationship after the end of the probationary period before the entitled father has taken all the paternity leave, the notice period is extended by the number of days of leave not yet taken (cf. Art. 335c CO).

The employer is also not allowed to reduce the holiday entitlement due to the taking of paternity leave (cf. Art. 329b para. 3 lit. c CO).

The relationship to contractually agreed paternity leave

It is questionable and disputed how the statutory entitlement to paternity leave is to be assessed in relation to contractually agreed entitlements.

Labour unions and some scholars are of the opinion that contractual (individual or collective agreement) entitlements remain unaffected by the new statutory entitlement because the entitlements are based on different legal grounds: The entitlement to paternity leave is a statutory entitlement, whereas agreements concerning days off for childbirth are contractual entitlements. According to their  view, the claims exist in parallel and add up. 

We strongly differ and are of the opinion that such contractual provisions are generally to be interpreted as including a potential statutory entitlement. This particularly applies if at the time when the contract was concluded no statutory entitlement to paternity leave existed. 

Other initiatives to balance work and family life

With paternity leave, an important step was taken to promote equality between the sexes on the one hand and the compatibility of work and family on the other.

That is not all: various other motions are pending in parliament that advocate the introduction of parental leave of up to 14 weeks, a concept that for example has already been enshrined in law for example in Germany and Sweden since years and decades.

We assume that earlier or later, also Switzerland will follow in the direction of a modern parental leave and will keep you informed.

If you have any questions on this topic, our employment law team will be happy to help you at any time.

Authors: Marc Ph. Prinz, Luljeta Morina

Category: Employment Law