KMU-Magazin Nr. 01/02, January/February 2021 The statutory paternity leave - Prerequisites and effects
Paternity leave helps fathers and their families, especially in the initial phase after child-birth. This article provides information on the eligibility requirements for paternity leave and its compensation, and sheds light on individual implications and problems under em-ployment and social security law.
The paternity leave that came into force on January 1, 2021, must be viewed from two dif-ferent perspectives. On the one hand, it must be viewed from the perspective of the labor law’s new legal provisions, and on the other hand, from the perspective of social security law.
The former amendments relate to the employment relationship and the employee's entitle-ment to leave, while the latter relate to compensation for fathers entitled to leave. In particu-lar, the conditions for entitlement are not congruent for the two levels.
Employees who become fathers on or after January 1, 2021, by virtue of being married to the child's mother or by acknowledging the child within six months of the birth, are entitled to paternity leave of two weeks under Article 329g(1) of the Code. This in itself raises a fundamental question: Is the father also entitled to paternity leave if the child was born be-fore January 1, 2021, but the child is born after the provision comes into force?
In our opinion, fathers who recognized paternity before the enactment of the provision effec-tive January 1, 2021 of a child born after December 31, 2020 should receive paternity leave. Otherwise, there would be an unfair inequality of treatment compared to those who recog-nized paternity later.
The two-week paternity leave does not have to be taken at one time. Rather, it is possible to take the vacation days on a daily basis. However, it must be taken into account that the em-ployer can determine the date of the vacation. In doing so, the employer must take the wish-es of the employee into account to the extent that this is compatible with the interests of the company.
In the case of part-time employees, the vacation entitlement is calculated on a pro rata basis according to the contractual workload, analogous to the calculation of the general vacation days. An eligible father with a 50-percent workload is therefore entitled to one week of pater-nity leave. Furthermore, the law stipulates that if the employer terminates the employment relationship, the notice period is extended by the number of days of leave not yet taken if an entitlement to paternity leave arises before the end of the employment relationship (Art. 335c para. 3 CO). There is therefore no analogous blocking period as exists for maternity leave.
However, the notice period is extended only by the number of days remaining at the end of the contract (i.e. at the time of expiry of the notice period). Termination during the proba-tionary period and termination by the employee do not affect the notice period.
The extension of the notice period also has a prolonging effect on the employee's inclusion in the employer's accident insurance and the affiliation to the pension fund. In addition, the employee may continue to be insured under the employer's daily sickness benefit insurance (KTG), if such insurance exists. However, the specific insurance policy must be consulted. In the event of a change of job during the six-month period, it is questionable whether the employee can assert his claim to (the remaining) paternity leave against the new employer.
The law does not address this issue. According to the report of the Committee for Social Security and Health of the Council of States, the employee loses his entitlement if he does not take the leave despite the extended notice period.
This view has been criticized in legal doctrine, in particular because the Commission's view would frustrate the purpose of paternity leave - to build up the father-child relationship - if the claim could not also be asserted against the new employer. In addition, the Act on Com-pensation for Employment (EOG, SR 834.1) does not provide for the change of position just described in its conclusive list as a reason for terminating the entitlement to compensation.
In contrast to the provisions of the EOG, the Code of Obligations does not comment on the termination of the entitlement to paternity leave. In general, however, the entitlement must end as soon as the actual purpose of the paternity leave can no longer be pursued. This ap-plies in particular to the death of the child.
The social security legal claim
The entitlement to paternity compensation is newly regulated in the EOG. The requirements for the entitlement to compensation are not exactly the same as for the leave entitlement described above.
The following requirements must be met by the father:
- during the nine months immediately preceding the birth of the child, he was compulsorily insured in accordance with the Federal Law on Old Age and Sur-vivors' Insurance (AHVG, SR 831.10);
- during this period, he was gainfully employed for at least five months;
- at the time of the birth of the child, the father is gainfully employed;
- at the time of birth, he is the legal father or will be within the following six months.
The circumstances may therefore also be such that a father who is not entitled to compensa-tion under the EOG is entitled to two weeks' leave from his employer under the law of obli-gations.
The employer is not obliged to continue paying wages for the period of paternity leave. However, if the requirements are met, the employee is entitled to 14 daily allowances in the amount of 80 percent of his or her average earned income prior to the start of the entitle-ment, up to a maximum of CHF 196 per day.
As already mentioned, the daily allowances are financed via the Acquired Benefits Ordi-nance. The contributions for the replacement of employees are paid out of this. The amount of the daily allowance is increased from 0.45 percent to 0.5 percent for both the employer and the employee. Entitlement to daily allowances ends after the expiry of the six-month framework period, when the 14 daily allowances have been exhausted, on the death of the father or child, or when paternity is revoked (Art. 16jpara. 3 lit. a-e EOG). The grounds for termination are listed exhaustively in the law.
If there was an agreement between the employer and the employee before the paternity leaveand the employee (in the individual employment contract or in personnel regulations), which granted the employee paid days of absence in connection with the birth of the child, this agreement is also valid and must be observed after the paternity leave comes into force.
If an employee meets the legal requirements for paternity leave or compensation, the leave days granted by law or the compensation provided for this purpose must be offset against the contractually agreed leave days or compensation, i.e. the contractual entitlement and the statutory entitlement cannot be cumulated. Consequently, for example, the employer has the social insurance law claim to paternity benefits with salary payments up to the contractually agreed compensation in order to fulfill its obligations under the employment contract.
The purpose of paternity leave is to strengthen the father-child relationship and support the mother, especially in the first few weeks after the birth, and to promote family-friendly working conditions. The aim of the amendment is laudable and moves closer to a modern family policy. However, it is already clear that complex legal issues may arise in individual constellations with regard to the accrual of entitlement and the receipt of leave and daily allowances, as paternity leave is caught between the interests of the employer and the em-ployee. In the case of such complex questions, we recommend contacting specialists.