Starting January 1, 2024, a parent whose spouse dies immediately after the birth of their child will be entitled to additional parental leave. The Federal Council (government) decided in its meeting on November 22, 2023, that the amendments to the Loss of Earnings Compensation Act (Bundesgesetz über den Erwerbsersatz, EOG) and the Federal Personnel Ordinance (Bundespersonalverordnung, BPV) that the Swiss National Council (lower house of parliament) adopted in March 2023 would enter into force that day. The amendment extends the duration of maternity or paternity leave for the surviving parent by four additional months (death of the mother) or 20 working days (death of the father or other legal parent), respectively. The primary goal of this legislative change is to prioritize the care and well-being of the newborn child in the first months of life.
New Regulation
The amendment provides that if the mother of the child dies on the day the child is born or within 97 days thereafter, the legal father or other legal parent is entitled to four months of additional leave along with their full salary and social benefits. The additional leave must be taken one day after the mother’s death and cannot be split up. (Federal Personnel Ordinance art. 60b, para. 3 (new).) The intent is to grant the surviving legal parent the same leave entitlement as the deceased parent originally had. (Explanatory report (Erläuternder Bericht), at 7.) Conversely, if the legal father or other legal parent passes away within six months following the child’s birth, the mother is entitled to an additional 20 working days of maternity leave at full pay with social benefits. (Federal Personnel Ordinance art. 60, para. 1 bis (new).) The entitlement to salary payments during the parental leave is based on the EOG complemented by the Loss of Earnings Compensation Ordinance (Erwerbsersatzverordnung, EOV).
Since the implementation of amendments to the Swiss Civil Code (Schweizerisches Zivilgesetzbuch, ZGB) to allow same-sex marriage (Marriage for All Act) on July 1, 2022, the mother’s wife (other legal parent) is also eligible for paternity allowance under specific conditions. Consequently, adjustments have been made to the language of the provisions in the EOG and the BPV.
Timeline
The impetus for this amendment traces back to the Maternity Leave for Bereaved Fathers parliamentary initiative (parliamentary initiative no. 15.434), submitted on June 8, 2015. The Social Security and Health Committee of the National Council and the Council of States approved the initiative on January 22, 2016, and August 30, 2016, respectively. Parliament ratified the amendment to the Loss of Earnings Compensation Act on March 17, 2023. The referendum period lapsed without use on July 6, 2023, prompting the Federal Council to determine the entry into force of the amendment and issue the corresponding implementing provisions to amend the Loss of Earnings Compensation Ordinance. (Explanatory report, at 3.)
Statistics and Financial Implications
Deaths due to complications following pregnancy or childbirth are rare. According to the Swiss Federal Statistical Office, an average of five out of approximately 82,000 births were affected between 2005 and 2021. The cost of the amendment of the loss of earnings compensation is estimated at 120,000 Swiss francs (CHF) (about US$138,000) for 2024. CHF 80,000 (about US$91,000) will be spent on leave for surviving fathers and CHF 40,000 (about US$46,000) on leave for surviving mothers.
Background on Paid Parental Leave
Article 116, paragraph 3 of the Swiss Constitution (Bundesverfassung der Schweizerischen Eidgenossenschaft, BV) specifically addresses child allowances and maternity insurance, mandating the Swiss Confederation to establish maternity insurance, which was realized in 2005.
Mothers are entitled to a minimum of 14 weeks of paid maternity leave following childbirth. (Code of Obligations (Obligationenrecht, OR) art. 329f; EOG art. 16b). The compensation typically amounts to 80% of their income, capped at CHF 220 (approximately US$250) per day. (EOG arts. 16e, 16f.)
Furthermore, an amendment to the Code of Obligations and the Loss of Earnings Compensation Act in October 2020 introduced two-week paid paternity leave for legal fathers. (EOG arts. 16i, 16k.) Similar to maternity leave, this leave allows fathers to receive compensation equal to 80% of their income, capped at CHF 220 per day. (EOG art. 16l in conjunction with art. 16f.) In addition, since January 1, 2023, Swiss parents who adopt a child younger than four years old are also entitled to two weeks of paid parental leave.
Prepared by Laura Schwarz, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist
December 28, 2023
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