The new federal law on improving the compatibility of gainful employment and care for dependents leads to numerous innovations, particularly in labor law: Employers will in future be obliged to continue paying wages in the event of short absences of employees for the necessary care of relatives. In addition, parents of children with serious health problems will be entitled to paid caregiver leave of up to 14 weeks in the future. The new legal provisions come into force on a staggered basis from 1. January 2021 respectively. per 1. July 2021 in force.
Initial situation: the current legal regulation
Employees with caregiving or nursing duties are already entitled to exemption from work under certain conditions and u.U. The employee is also entitled to continued payment of wages in order to fulfill his/her obligations to his/her children, other relatives and close persons during working hours. The relevant legal provisions can be found in Art. 36 para. 3 Labor Law (ArG), Art. 324a of the Swiss Code of Obligations (OR) and Art. 329 Abs. 3 CO:
According to Art. 36 para. 3 ArG employees are entitled, upon presentation of a doctor's certificate, to be released from work duties for the time necessary to care for sick children, up to a maximum of three days per occurrence. The care of other relatives or close persons is not mentioned. The continued payment of wages is also not regulated in the ArG.
The entitlement to continued payment of wages and u.U. A longer period of leave from work for the care of dependents is stipulated in Art. 324a CO regulated. The employee is not only prevented from working (through no fault of his own) if he is incapacitated for work due to his own illness or accident. Such prevention may also occur in the case of the fulfillment of statutory duties, z.B. in the case of care and nursing of own children, spouse, registered partner by the employee exist. However, there is no legal obligation to provide care for partners or siblings. Whether the care and nursing of such persons, to whom there is "only" a moral obligation on the part of the employee to care, also entitles the employee to time off work and continued payment of wages under Art. The legal basis for the claim under Art. 324a OR has not been conclusively clarified.
The claim for continued payment of wages according to Art. 324a OR exists in any case only as long as no substitute solution for the care can be found or, in the case of children, if the care by the parents is considered necessary for medical reasons. The right to continued payment of wages is also limited in time and dependent on the number of years of service, whereby the relevant absences of the employee, z.B. own illness, illness of a child etc., Be added up in the year of service in question.
For the remaining cases, especially for the care of sick family members to whom no legal duty of care applies (z.B. towards siblings) or other close people, z.B. If the employee is a partner, the employer can grant the employee a leave of absence on the basis of Art. 329 Abs. 3 OR grant extraordinary free time ("usual free hours and days"). However, this is intended only for cases of short-term time off work, when workers can avoid going to times outside of work hours or. the ordinary free time is not possible or reasonable. Type. 329 para. 3 OR does not provide for the employer's obligation to continue paying wages. Such a test must be either contractually agreed upon or customary (type. 322 para. 2 OR). For employees on monthly wages, it is customary that wages are paid for such absences.
In August 2018, the Federal Council noted an increasing importance of working family members providing care for their ill family members. The reasons for this are an increasing need for care that cannot be met by the health care system alone, new forms of family cohabitation, and the steadily increasing labor force participation rate among women. These reasons led to the submission of the new federal law, the goals of which are to improve the compatibility of employment and care for dependents and to create legal certainty.
New: Three-day care leave to care for relatives
Paid leave to care for dependents
According to the new legal provisions (in the OR and ArG), employees are not only entitled to time off work and continued payment of wages in the event of short absences from work for the necessary care of children, but now also for the care of family members or their life partner.
Which conditions must be fulfilled?
Family members are relatives in ascending and descending line, d.h. Mainly parents and children, as well as siblings. In addition, spouses, parents-in-law, as well as cohabiting partners who have shared a household with the employee for at least five years.
Further a health impairment of the relative must be present. This term is broadly defined and is not only present in the case of an illness or accident, but also, for example, in the case of a disability.
Then the care by the employee must be necessary. The need depends u.a. Depends on the availability of other people who could reasonably intervene. Need for care is also a criterion. With smaller children, for example, the care is likely to be more necessary.
In the new text of the law, the submission of a doctor's certificate is no longer explicitly mentioned. Nevertheless, employees still have the burden of proof for the facts justifying the claim, in particular the health impairment of their relatives. As a rule, this evidence should therefore continue to be provided mainly by presenting a doctor's certificate.
How long is the caregiver leave?
Leave is limited to the duration required, but is no more than three days per event. The leave entitlement therefore applies once for each individual, specific impairment, even if it lasts longer or occurs repeatedly.
In addition, there is a maximum annual limit of ten days per year of service. This means that an employee may care for several dependents in one year of service, as long as the requirements are met and the total absences do not exceed ten days.
It should be noted that the ten-day limit does not apply to the care of children with health impairments.
Enter into force
The new regulations on three-day caregiver leave take effect on 1. January 2021 in force.
NEW: 14 weeks care leave to look after children
Caregiver leave and caregiver compensation
Working parents find themselves in a very difficult situation when a child's health is severely or long-term impaired due to illness or accident. Caregiver leave and entitlement to caregiver compensation are intended to relieve the burden on these employees and provide them with better protection.
In the future, working parents will be granted a new 14-week leave for the care of a child whose health has been seriously impaired due to illness or accident. Loss of income is compensated through the compensation system (the "caregiver compensation").
Who is entitled to caregiver leave?
Entitlement to caregiver leave under OR is only available if it is also compensated through EO, d.h. If the employee is entitled to caregiver compensation under EO.
Eligible parents of a minor child who is severely health impaired. It is referred to the Kindsverhaltnis according to Art. 252 ZGB linked.
Severe health limitation is defined by law and exists when (i) there has been a drastic change in the child's physical or mental condition; (ii) the course or outcome of that change is difficult to predict or is likely to result in permanent or increasing impairment or death; and (iii) there is an increased need for care by the parents.
It is further amed that at least one parent is employed either as an employee or self-employed and must interrupt employment. The need for accompaniment, care and nursing must be confirmed by a doctor's certificate.
To be distinguished from this are moderately severe health impairments that require hospitalization or regular visits to the doctor and make everyday life more difficult, but for which a positive outcome can be expected or the health impairment can be controlled (bone fractures, diabetes, pneumonia).
Unlike income replacement during maternity and paternity leave, no prior insurance or minimum employment period is required for childcare compensation.
Duration of care leave and care compensation
The right to care compensation and leave arises per event of illness or accident. The caregiver leave is a maximum of 14 weeks. Can be obtained within a frame period of 18 months. The framework period begins with the day for which the employee's first daily allowance is received. The care leave can be taken by the day or at a stretch.
If both parents are employed, each parent is entitled to childcare leave of a maximum of seven weeks. But you can also agree on a different division of the vacation. The employer does not have to approve the change of the distribution, but must be informed about the modalities of taking leave.
How much is the financial compensation?
The care compensation is in the form of daily allowances from the EO. The 14-week caregiver leave is equivalent to 98 calendar days, so eligible individuals are entitled to payment of a maximum of 98 daily allowances. The daily allowance is equal to 80% of the average earned income prior to the start of the caregiver leave and is capped at CHF 196 per day.
Time protection against dismissal and vacation entitlement
After the end of the probationary period, a temporary protection against dismissal applies during the care leave. The corresponding blocking period lasts as long as the entitlement to caregiver leave, but not longer than six months from the day for which the first daily allowance entitlement arises. Cancellation during the blocking period is null and void.
In addition, an employee's vacation entitlement may not be reduced by taking caregiver leave.
The new provisions on 14-week caregiver leave to care for children with serious health conditions do not take effect until 1. July 2021 in effect. This is to give the compensation funds enough time to introduce the new benefit.