Introduction
Leave to care for seriously ill children
Conditions
Leave duration and allowance amount
Coordination with other social insurance provisions
Coordination with Swiss Code of Obligation
Comment
The year 2021 has brought new developments in parental care with parental leave coming into force in the Swiss Code of Obligations (SCO) on 1 January 2021 following the popular vote of 27 September 2020. With Parliament's backing, the Federal Council proposed an additional two forms of leave that reconciles professional activity with caring for relatives. The first form of leave is to care for a relative (Article 329h CO), which also came into force on 1 January 2021, and the second leave is to care for a child with serious health problems due to illness or accident (Article 329i CO), which came into force on 1 July 2021.
The following article will discuss the reasons and conditions for the leave to care for a child with serious health problems, in addition to the rights of the parent taking the leave and how it relates to other social insurance laws and the SCO.
Leave to care for seriously ill children
According to the Federal Council, poor health of a child as a result of illness or an accident can create a profound upheaval in family life, leading to financial concerns if a parent forgoes paid work to care for their child.
As a relatively mandatory provision that cannot be derogated to the employee's detriment, Article 329i SCO is intended to enable concerned parents to leave their paid work for a certain time period without the risk of losing their earnings or employment altogether.
Beneficiaries
The Federal Act on Allowances for Loss of Earnings (LAPG) specifies who is entitled to receive the allowance. It is aimed primarily at parents who are gainfully employed, but also provides for foster parents and unemployed parents who are unable to work. It should be noted that in order to ensure equal treatment of foster children and stepchildren under the old age and survivors' insurance (OASI) scheme, the Federal Council has also enacted a regulation for step-parents.
Parents with gainful employment
The LAPG states that parents are entitled to the allowance if they interrupt their paid work to care for their child, provided that they are an active employee at the time. This applies to employees or self-employed persons according to the Federal Act on the General Part of Social Insurance, as well as a worker employed in his or her spouse's company in exchange for a cash wage.
The Federal Council explains the term 'parent' should be understood in the sense of filiation, without regard to the civil status of the parents, in order to take account of the diversity of family structures. Moreover, granting leave is not subject to any period of insurance or period of prior gainful activity, unlike maternity or paternity allowances. Furthermore, the number of working-hours is irrelevant.
Foster parents and step-parents
The Regulation on Loss of Earnings Allowances (RLEA), adopted on 12 May 2021 by the Federal Council, provides that foster parents who take care of a child with a serious health problem and who have to interrupt their employment are entitled for the leave, regardless of whether the foster placement is an agreed or court ordered one. However, they are not entitled if the child returns to one of its parents.
Step-parents are also entitled to the allowance if they live in the same household as the parent with parental authority (sole or joint) and custody of the child (sole or alternating) and make an appropriate contribution to the care and education of the child living in the same household. However, in order to benefit from the leave, the birth parent who lives with the step-parent or the other birth parent who lives elsewhere has to waive fully his or her right to the leave. If both parents waive their rights, both step-parents can claim the right. It should be noted that if a parent-child relationship only exists with one of the parents, only that parent has the right to the leave. However, in this case, the right can be transferred in whole or in part to the step-parent.
Unemployed parents or parents unable to work
While in theory a unemployed person cannot interrupt gainful employment, this may be because they are unable to work. In this case, the interruption should be considered as if they were gainfully employed. Such a person would be entitled to the allowance if they have received unemployment allowance up to the start of the entitlement.
In addition, parents who are unable to work due to illness or accident and who receive insurance benefits due to incapacity to work, as well as those who are part of an employment relationship but receive neither salary nor allowance because their entitlement has been exhausted, may also claim the right to the leave.
Child with serious health problems due to illness or accident
A child, or underage person, is deemed to have serious health problems if:
there has been a major change in their physical or mental condition;
the course or outcome of this change is difficult to predict or can be expected to lead to lasting or increasing damage to their health or to death;
the child has an increased need for care from one of the parents; and
at least one of the parents has to interrupt gainful employment to care for the child.
The nature of the child's ill health must be examined under different criteria, including the symptoms and the age of the child. For example, the health problems of a five-year-old child may not require the same support as a 15-year-old child. In addition, the health problems must involve long-term hospitalisation or outpatient medical treatment of several months or more.
Leave duration and allowance amount
If these conditions are met, a parent caring for a child with a serious health problem is entitled to take a leave for up to 14 weeks, either all at once or prorated, within 18 months from the day of the first daily allowance payment. The employee must immediately inform their employer of the nature of the leave and of any subsequent changes to the conditions. The employee is entitled to only one allowance per case of the child's ill health. The right of leave ends either after the 18-month period, after the maximum number of daily allowances has been received, or when the conditions are no longer met. Entitlement does not end if the child comes of age before the end of this period.
The allowance amount, a maximum of 98 daily allowances, is equal to 80% of the employee's average income before the start of the leave period, but may not exceed 196 swiss franc per day (£155). The allowance for part-time workers is 80% of the average income from part-time employment. The entitlement to unpaid benefits ends five years after the last day of care leave.
If both parents work, each is entitled to take up to seven weeks of care leave (which can be taken simultaneously) and up to half the daily allowance. However, the parents may agree to share the leave and benefits differently, for example 11 weeks for one parent and three weeks for the other. If the leave is shared, the parents' cumulative earnings are not used to calculate the allowance.
Coordination with other social insurance provisions
A caregiving allowance takes precedence over daily allowances or benefits from other social insurance. However, maternity allowance takes precedence over both, with a supplement for intensive care granted by the Invalidity Insurance, which may be paid at the same time as the caregiving allowance.
In addition, under the LAPG, contributions to the OASI, invalidity insurance, the Income Compensations Scheme and unemployment insurance are deducted from the allowance paid to entitled persons. The employer's contribution is paid by the Security Social Fund. Furthermore, the allowance paid is recognised as salary within the meaning of the Federal Act on Accident Insurance, so that continued insurance coverage is guaranteed while the employee is on leave.
Moreover, the Federal Act on Occupational Pension Fund, Old Age, Survivors and Disability Insurance is amended to provide insurance coverage for occupational pension plans. The Federal Act on Family Allowances in Agriculture is also being adapted to be simultaneously provided to a person receiving a caregiving allowance.
Coordination with Swiss Code of Obligation
Article 329i SCO changes the legal provision protecting an employee from dismissal for the length of the leave for a maximum of six months from the start date of 18-month time limit. Therefore, if the dismissal occurs during the protection period, it will be considered null and if it occurs before, it will be suspended. However, it is still possible for an employee to be dismissed while still exercising their right to leave. In addition, the employer is also prohibited from reducing the holiday of an employee on care leave.
Furthermore, when determining the salary level during this period, leave to care for a child with a serious health problem must be qualified as a non-faulty prevention of work. Therefore, entitlement to wages is determined in accordance with Article 324b SCO, which states that the employer is not obliged to pay wages if the insurance benefits due for the limited period cover at least four-fifths of the wages for that period. If the 80% of wages exceeds the maximum daily allowance or if the assumption allowance does not cover 80% of wages, the provisions on continued payment of wages apply.
Article 329i is a welcome prevision, along with the others mentioned in the introduction. In particular, its flexible terms and conditions allow care to be provided in a way that accommodates the needs of both parents and children.
For more information please contact Rayan Houdrouge or Fabio Santoni at Lenz & Staehelin by telephone (+41 58 450 70 00) or email ([email protected] or [email protected]). The Lenz & Staehelin website can be accessed at www.lenzstaehelin.com.