The following can be read in the Federal Council’s communication of 22 November 2023 (inofficial translation):
“The death of a parent immediately after birth is a severe blow for the family and the newborn child. In such cases, the surviving parent will in future be entitled to longer maternity or paternity leave. The amendment is intended to ensure that the care and well-being of the newborn child is prioritised in the first few months of life. At its meeting on 22 November 2023, the Federal Council decided that the amendment to the Income Compensation Act (EOG) will enter into force on 1 January 2024 and adopted the corresponding changes.”
What is it all about?
The law was approved on 17 March 2023 and the referendum lapsed without objection. The amendments relate to the EOG and other legislation and ordinances relevant to its implementation. The CO (code of obligation) regulates leave and the EOG (income compensation act) regulates compensation.
Link to the EOG (available in German, French or Italian): https://www.fedlex.admin.ch/eli/fga/2023/783/de
Link to the EOV (Income Compensation Ordinance; available in German, French or Italian): https://www.newsd.admin.ch/newsd/message/attachments/84293.pdf
With the introduction of various types of leave, such as paternity leave, leave to care for a child with a serious health condition due to illness or accident (BUE) and adoption leave, companies have already had to consider the extent to which they should adapt their personnel regulations and contracts.
The main question arises above all in the case of salaries that are not covered by the entire loss due to the upper limit of the daily allowance compensation according to the EO. Will the difference be compensated by the employer or not?
Even if it will hopefully be a rare case, companies should also deal with the new holiday entitlements from 1 January 2024. For payroll, this new type of leave also creates another challenge when it comes to correctly calculating and processing continuation of payments.
The entitlement to leave and compensation arises if the death occurred on or after 1 January 2024.
What does the OR regulate?
Extension of maternity leave if the other parental partner dies
(Free translations)
“In the event of the death of the other parental partner during the six months following the birth of the child, the employee is entitled to two weeks’ additional leave; she may take this leave on a weekly or daily basis within a framework period of six months from the day after the death.” pursuant to Art. 329f para. 3 OR
“If the employer terminates the employment relationship and the employee is entitled to the leave of the other parental partner in accordance with Article 329g before the end of the employment relationship, the notice period shall be extended by the days of leave not yet taken.” pursuant to Art. 335c para. 3 OR
The protection against dismissal applies to the start of the leave and the last day of leave taken, but no longer than three months after the end of the 16 weeks of normal maternity leave.
There is no reduction in holidays.
Maternity leave for the other parental partner in the event of the mother’s death
(free translation)
“ If the mother dies on the day of childbirth or during the 14 weeks thereafter, the other parent is entitled to take leave.” pursuant to 329gbis para. 1 OR
If the newborn is hospitalised, the leave is extended by the duration of the hospitalisation, but by a maximum of eight weeks.
If the other parental partner is no longer in the probationary period, the protection against dismissal must be taken into account for the entire leave period.
There is no reduction in holidays.
What does the EOG and the EOV regulate?
In principle, daily allowances are granted in accordance with the provisions of the Swiss Code of Obligations.
Extension of maternity leave if the other parent dies
Art. 16k EOG is supplemented to include the other parental partner. The entitlement is analogous to the paternity leave already introduced. (free translation)
“2 The other parental partner is entitled to a maximum of 14 daily allowances.
3 If leave is taken on a weekly basis, 7 daily allowances are paid per week.
4 If the leave is taken on a daily basis, an additional 2 daily allowances are paid for every 5 compensated days.”
Maternity leave for the other parental partner in the event of the mother’s death
Art. 16kbis EOG Entitlement to additional daily allowances in the event of the mother’s death (free translation)
“1 If the mother dies on the day of childbirth or during the 97 days thereafter, the other parental partner is entitled to an additional 98 daily allowance; these daily allowances must be drawn on consecutive days.
2 If the newborn child is hospitalised, Article 16c paragraph 3 applies by analogy.
3 The entitlement under paragraphs 1 and 2 arises on the day after the mother’s death and ends for the reasons set out in Article 16j paragraph 3 letters b-e or on resumption of gainful employment.
4 The framework period of six months in accordance with Article 16j is interrupted during the receipt of daily allowances in accordance with paragraphs 1 and 2.”
If the child is born dead or dies at birth, the father or the mother’s wife is not entitled to compensation.
In addition, the claimant must be employed or self-employed (definition according to Article 10 or 12 ATSG). Under certain circumstances, unemployed persons or persons unable to work may also be entitled to daily allowances (see explanations under EOV).
Receipt of the daily allowance for the other parental partner suspends the entitlement to other daily allowances. If there was already an entitlement to another daily allowance before the start, the compensation of the other parental partner corresponds at least to the daily allowance previously received (disability daily allowance, daily sickness allowance under the KVG (health insurance), daily accident allowance, daily allowance from military insurance, daily unemployment allowance)
The leave must be taken in one go on the day after the mother’s death. The other parent is not allowed to resume gainful employment during the period of leave. Otherwise, the entitlement to daily allowances will lapse! This is known to be a recurring issue for mothers during their maternity leave.
However, it is tricky for the left-behind parent and the company. Under normal circumstances, the death of the mother is not expected. In principle, this means that the other parent has to go on leave unprepared and is not allowed to hand over any work to other employees in the company. Is this realistic?
How do companies regulate this in the HR regulations / employment contracts? Leave must be granted in accordance with the OR. However, companies should protect themselves by prohibiting the early resumption of work or by not guaranteeing continued payment of salary after an early return to work.
Another sticking point for companies could be the following clarification in accordance with the circular (free translation): If the child has not been recognised at the time of death, the father is only entitled to an extension of his compensation entitlement if the recognition procedure is already underway and the employer has granted the leave days on this basis. If the child relationship cannot ultimately be established during the framework period, the compensation received must be refunded.
The EOV contains various clarifications regarding the relevant salary for calculating the daily allowance.
Among other things, it regulates the conditions for compensation to an unemployed or incapacitated mother or to the unemployed or incapacitated other parental partner as well as self-employed persons.
It is also determined which compensation fund is responsible for the treatment and payment of daily allowances in which situation.
With the publication of the circular on maternity compensation and compensation for the other parental partner (KS MSEAE) with effect from 1 January 2024, the former circular on maternity and paternity compensation (KS MVSE) has been renamed and supplemented.
The adjustments to the circular for 1 January 2024 can be viewed in detail at the following link (in German, French or Italian): https://sozialversicherungen.admin.ch/de/d/18327
It deals with the correct registration forms and documents required when registering a daily allowance and specifies the responsibility of the compensation office in accordance with the EOV.
In addition, the applicable regulation for insured earnings pursuant to the BVG (pension fund) should be recalled:
The coordinated salary is maintained unless the insured person requests a reduction in the coordinated salary. This applies during continued salary payment pursuant to Art. 324a CO or in the case of other leave pursuant to the CO (including leave from 1 January 2024).
Conclusion
All in all, this is a new legal provision that is packed with details. For the reasons mentioned above, it is recommended that you do not wait until a hopefully rare case arises and a hectic rush starts.
