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Switzerland - Maternity protection - 2011


LAST UPDATE

19 October 2011

SOURCES


Name of Act

Framework Ordinance respecting the personnel of the Confederation, dated 20 December 2000, with amendments up to 1st August 2010

Name of Act

Ordinance No. 1 regarding the Act on the Industry, handcraft and commerce of 10 May 2000, with amendments up to 1st August 2011

Name of Act

Ordinance regarding maternity protection of 20 March 2001, Dangerous activities. Last amended by Act of 17 September 2008

Name of Act

Federal Sickness Insurance Act of 18 March 1994, with amendments up to the 1st January 2011

Name of Act

Federal Act on Old Age Insurance of 1946, 20 December 1946, with amendments up to 1st January 2011

Name of Act

Federal Act respecting equality between women and men, dated 24 March 1995, with amendments up to 1st January 2011

Name of Act

Federal Act respecting earnings loss insurance in case of "service" and maternity, dated 25 September 1952, with amendments up to 1st January 2011

Name of Act

Regulation respecting earnings loss insurance, dated 24 November 2004, with amendments up to 1st January 2011.

Name of Act

Federal Law on General Provisions concerning Legislation on Social Insurances, dated 6 October 2000, with amendments up to 1st January 2011.

Name of Act

Federal Act respecting the personnel of the Confederation, dated 24 March 2000, with amendments up to 1st January 2011.

Name of Act

Labour Act respecting work in industry, handicrafts and commerce, dated 13 March 1964, as amended up to Act, dated 20 March 2008

Name of Act

Code of Obligations, dated 30 March 1911, with amendments up to 1st January 2011.

Name of Act

Ordinance 3 regarding the Labour Act (hygiene, OLT 3) OF 18 August 1993, with amendments up to May the 1st 2010

Name of Act

Federal Act on family allowances, amendment up to 18 March 2011.
Release Date: March 29, 2011
Referendum deadline: July 7, 2011

Other source used

Travail et Santé
Grossesse, Maternité and Periode d’allaitement

Other source used

MATERNITY LEAVE


Scope

The Labour Act applies to all enterprises public and private

Enterprises excluded:
a. Public administration federal, cantonal and communal
b. Public transport regulated by labour federal law
c. Swiss maritime transport regulated by federal maritime law
d. Agricultural enterprises and/or services whose activity is dealing or using the products of the main exploitation, are excluded also the facilities of milk collectors and enterprises that work with milk.
e. Horticultural (the norms on safety at work are applicable)
f. fisheries
g. private households

Persons excluded:
a. Members of religious communities
b. Civil servants of third countries and international organizations resident in Switzerland.
c. Workers with high managerial functions; independent
artistic or scientific activities.
e. Professors in private schools, social assistants, monitors.
f. homeworkers.
g. Commercial agents according to the federal law.
h. Workers covered by the Agreement of 21 May 1954 (Rhine boatmen)

The Labour Code is also inapplicable to family enterprises where are only occupied the director of the enterprise, their parents in ascendant or descendant line and their spouses or registered partners and their children.
The Labour Code will be applicable to other workers hired by the enterprise. Especial norms may be enacted to protect the work perform by minors.

As household are excluded from the scope of the Labour Code, this norm is inapplicable to domestic servants. Nevertheless, they are covered by the Code of Obligations and other federal or cantonal legislation.
In the private sector, all persons employed on the basis of a contract of employment are covered under the Code of Obligations.

Women employed on the basis of a contract of employment in the public sector are not covered by the Code of Obligations but by special laws. However, these special norms generally don’t provide less than 14 weeks of maternity leave.
Labour Act §§ 1, 2, 3, 4
Code of Obligations

Qualifying conditions

There are not enlisted qualifying conditions
Labour Act §35
Code of Obligations

Duration

14 weeks
Labour Act §35 a
Code of Obligations § 329f new

Compulsory leave

A woman is prohibited from working during eight weeks after the birth of her child.
Labour Act § 35a

General total duration

14 weeks to be taken in one block.

No extension provided for multiple births

Employers in principle may not reduce a woman�s annual leave. However, annual leave may be reduced by one-twelfth for each full month of absence if she has been prevented from doing her work for more than two months because of pregnancy.

Maternity leave is regulated on a federal level, however the cantonal laws can provide better conditions. This is the case in the Canton of Geneva where maternity leave is payable for 16 weeks.

Female workers employed by the Swiss Confederation are entitled to 98 days up to one year of service and at least four months if the woman has completed a year of service.
Ordinance respecting the personnel of the Confederation §9
Code of Obligations §329f, 329b
Federal Act on earnings losses in case of maternity §16h
Historical data (year indicates year of data collection)
  • 2004: Ninety-eight days
  • 1998: Eight weeks
  • 1994: Eight weeks

Extension

Up to the 16th week after birth the woman can only be employed with her consent.
Labour Act § 35a

Leave in case of illness or complications

If the pregnant woman cannot work for reasons of health connected to her pregnancy, her absence is considered as an illness and paid according to her years of service in the company.

During pregnancy, a woman may be excused from work or may leave her work without any other formality than that of notifying her employer. However there is no obligation on the employer to pay the salary if the woman does not present a certificat of sickness.
Code of Obligations §324 a
Labour Act § 35 a

RELATED TYPES OF LEAVE


Parental leave

There are not express legal provisions on parental leave.

However, employees with special family duties enjoy two rights:

1. Employees with family duties such as the education of minors under 15 years old shall not be assigned overtime work and they may enjoy a break of 1hour and a half at noon.
2. Employees needing to take care of a sick child have right to paid leave up to 3 days
Labour Act §36

Paternity leave

There was not identified any express legal
provision on paternity leave.
Labour Act

Adoption leave

There is not adoption leave at the federal level however some Cantons have introduced adoption leave benefits identical to maternity leave benefits. This is the case in the Canton of Geneva where since July 2005 parents are entitled to 16 week adoption leave (same as maternity leave) as from the child’s placement.
Maternity protection law Geneva

RIGHT TO PART-TIME WORK

Pregnant workers shall not work standing
for more than 4 hours a day
Ordinance No. 1 of 2000 §61

CASH BENEFITS

Are covered those who paid contributions. Employees, self-employed and unemployed receiving benefits.
Federal Act on earnings losses in case of maternity
Federal Law on Social Insurances

Maternity leave benefits

During maternity leave, female workers have
right to receive maternity cash benefits.
80% of wages under the form of daily allowances.
Federal Act on earnings losses in case of maternity §16b
Regulation respecting earnings loss insurance §10,23

Scope

Female employees; self-employed workers; female worker working for and paid by her husband’s or relative’s undertaking; unemployed female workers receiving benefits; female worker on sick leave.
Federal Act on Old-Age Insurance § 1 a
Federal Act on earnings losses in case of maternity § 16b

Qualifying conditions

To be entitled to cash benefits, women workers shall have worked during the 5 months prior to delivery and in addition shall have been insured with the compulsary federal insurance fund AVS (Assurance-Vieillesse-Survivants) for at least the 9 months preceeding imediately the delivery (6 months in the event of delivery before the 7th month of pregnancy, 7 months if delivery occurs before the 8th month, and 8 months if delivery occurs before the 9th month).They must as well cease work during the maternity leave.

Periods worked in an EU or EFTA country are taken into account.

If a female worker does not meet the qualifying conditions to be entitled to maternity leave allowances, or if during pregnancy she is prevented from working because of sickness, the employer shall be required to continue to pay her salary for a limited period of time. The duration is 3 weeks during the first year of service. Thereafter a longer period is fixed on an "equitable basis".

After one year of service wages are to be paid for "a reasonably longer period", taking into account the duration of the employment relationship at the particular circumstances of the case.

A number of Cantonal Labour Courts have established directives for the interpretation of what is considered a reasonably longer period. In the Canton of Bern, for example, payment is compulsory for one month during the second year of employment, two months during the third and fourth years, three months for the fifth up to the ninth years, four months during the tenth up to the fourteenth year, etc.

Cash benefits are paid during a minimum standard period of 16 weeks, of which at least 8 after the birth. Maternity benefits must be paid, even if the sickness cash benefits have already been paid entirely. Employers may also take out an individual insurance against sickness with an optional insurance for loss of income arising out of pregnancy and childbirth. Women workers should already be affiliated to a sickness fund for at least 270 days before the birth of their child, without a break of more than three months, before they are entitled to cash benefits for loss of income because of pregnancy and childbirth.
Federal Act on earnings losses in case of maternity § 16 b
Regulation respecting earnings loss insurance §§ 26, 28
Code of Obligations §324 a
Federal Sickness Insurance Act § 74

Duration

The entitlement to the benefit begins on the day of delivery.
In case of prolonged hospitalization of the newborn, the mother may request that the payment of the allowance is postponed until the child returns home.
This benefit ends the 98th day(14 weeks)from the day it was awarded. It ends before that time if the mother takes a gainful activity or if it dies.
Federal Act on earnings losses in case of maternity §16b,16c,16d
Regulation respecting earnings loss insurance §23-25

Amount

Female workers are entitled to a a maternity allowance equal to 80 % of the average income received before the entitlement to the allowance, paid for 98 days (14 weeks) after the birth. The payment of the allowance will start on the childbirth regardless of the length of the pregnancy.

If a female worker does not meet the qualifying conditions to be entitled to maternity leave allowances, her salary will be paid by the employer according to art. 324 of the civil Code.

If the child is stilborn or die after birth, allowance remains due after 23 weeks of pregnancy. If the child remains hospitalized more than 3 weeks after confinement, female workers may request the payment of maternity allowances to start the date the child returns home.

Female workers employed by the Confederation are entitled to 4 month paid maternity leave based on 100% of the monthly wage preceeding the leave.


If an optional insurance for loss of income arising out of pregnancy and childbirth has been taken out by the employer or the employee, the amount of benefit agreed between the insurer and the insured person may not be less than the level of compensation for paid in the event of sickness.
Code of Obligations §329f, 324, 324a
Federal Act on earnings losses in case of maternity §§ 16c, 16e, 16f
Framework Ordinance respecting the personnel of the Confederation § 9
Federal Act on Old-Age Insurance § 72
Historical data (year indicates year of data collection)
  • 2009: Female workers are entitled to a a maternity allowance equal to 80 % of the average income received before the entitlement to the allowance, paid for 98 days (14 weeks) after the birth. The maximum allowance is CHf.172 per day. The payment of the allowance will start on the childbirth regardless of the length of the pregnancy. If a female worker does not meet the qualifying conditions to be entitled to maternity leave allowances, her salary will be paid by the employer according to art. 324 of the civil Code. If the child is stilborn or die after birth, allowance remains due after 23 weeks of pregnancy. If the child remains hospitalized more than 3 weeks after confinement, female workers may request the payment of maternity allowances to start the date the child returns home. Female workers employed by the Confederation are entitled to 4 month paid maternity leave based on 100% of the monthly wage preceeding the leave. If an optional insurance for loss of income arising out of pregnancy and childbirth has been taken out by the employer or the employee, the amount of benefit agreed between the insurer and the insured person may not be less than the level of compensation for paid in the event of sickness.
  • 2004: Eighty percent
  • 1998: One hundred percent
  • 1994: One hundred percent

Financing of benefits

Maternity allowance is funded by contributions to the plan allowance for loss of earnings (APG), collected in conjunction with the AVS. Are subject to the obligation to contribute employers, employees, independent people without gainful employment. The contribution rate is currently, for active people, 0.3% of gross salary. For employees, the employer must pay half the contributions. Those not gainfully required to contribute between 14 and pay 300 francs a year. Governments do not participate in the financing of the maternity allowance.
Federal Law on Social Insurances § 1a
Federal Sickness Insurance Act § 20
Federal Act on Old-Age Insurance §§ 3, 12
Historical data (year indicates year of data collection)
  • 2009: Financed by employers' and employees' contributions.
  • 2004: Social security
  • 1998: Employer
  • 1994: Employer

Parental leave benefits

up to 3 days in case the employee has a sick child
Labour Act

Paternity leave benefits

There were not identified express provisions on paid paternity leave
Labour Act

Adoption leave benefits

There is no adoption leave at the federal level however some Cantons have introduced adoption leave benefits identical to maternity leave benefits. This is the case in the Canton of Geneva where since July 2005 parents are entitled to 16 week adoption leave (same as maternity leave) as from the child’s placement.
Maternity protection law Geneva

MEDICAL BENEFITS

Medical care benefits are paid by the compulsory sickness insurance
Federal Act on Old-Age Insurance § 29

Pre-natal, childbirth and post-natal care

Women domiciled in Switzerland are entitled to specific maternity care. In addition to the general benefits this includes: check-ups during pregnancy, contribution to childbirth preparation courses, delivery at home or in a hospital, basic advice on breast-feeding and all expenses related to the hospitalisation of the mother and her newborn baby as long as they stay hospitalised.
Federal Act on Old-Age Insurance §§ 24, 29

Financing of benefits

Contributions made to the mandatory private insurance
(50% employer, 50% employee) or 100% self-employed.
Federal Law on Social Insurances
Federal Act on earnings losses in case of maternity

BREASTFEEDING


Right to nursing breaks or daily reduction of hours of work

Until the child is one year of age breastfeeding time is considered as working time if done at the workplace. If the mother leaves the workplace for breastfeeding half of the time is considered working time.
The extension of these breaks is not defined by the norm.
Ordinance No. 1 of 2000 § 60

Transfer to another post

As pregnant workers, nursing mothers are precluded
to execute dangerous or unhealthy jobs and are entitled
to be assigned to an equivalent job that does not put them
in danger. If this change is not possible, they will
be entitled to paid leave and they will receive 80% of their wages.
This 80% of wages cannot be deduced from eventual sickness allowance
the female worker has right to.
Labour Act §35,35b

Nursing facilities

There are not legal provisions.

HEALTH PROTECTION


Arrangement of working time

Pregnant women and breastfeeding women can only work with their consent. They can leave the workplace without the consent of the employer.

The maximum daily working time of pregnant women is 9 hours.

Throughout pregnancy and during lactation, women should
not perform night work or shift work when it comes to tasks
directly related to dangerous or painful in the sense of art. 7-13 or
organized as part of a system of shift work particularly damaging
to health. Are considered such systems work in teams require regular rotation in the opposite direction (morning-evening-night) or more than three consecutive nights of work.
Labour Act § 35 a
Ordinance No. 1 of 2000 §14, 60
Ordinance regarding maternity protection

Night work

Pregnant women should not be employed at night between 20:00 and 6:00 during the eight weeks preceding confinement. Whenever feasible, the employer should reassign night workers to day-time activities. Such an obligation is also valid for the period between the eighth and the sixteenth weeks after confinement. Otherwise, women employed between 20:00 and 6:00 should be given paid leave (80 per cent of their wages)
Ordinance No. 1 of 2000 1:§35(a) and (b)
Ordinance regarding maternity protection

Overtime

Pregnant women and nursing mothers may not work overtime. Working hours should not exceed nine hours a day
6:§60 (1)

Leave in case of sickness of the child

Employees needing to take care of a sick child have right to paid leave up to 3 days
Labour Act §36

Other work arrangements

After the fourth month of pregnancy, in case
the pregnant worker needs to work standing, she will
have right to at least 12 daily hours of rest and 10 minutes of
breaks every two hours
Ordinance regarding maternity protection

Dangerous or unhealthy work

Employers shall not assign a pregnant woman or nursing mother to work
with Group 2 microorganisms deemed harmful to the embryo or
fetus as rubella or toxoplasmosis, are excepted cases where there is evidence that the worker is sufficiently immune.

A pregnant woman or nursing mother are allowed to work with other microorganisms Group 2 only if the risk analysis to exclude any danger to the health of the mother and child.

It is forbidden to affect a pregnant woman or nursing mother to work
with microorganisms in groups 3 and 4 are excepted cases in which
is evidence that the worker is sufficiently immune.

Employers must ensure that exposure to hazardous substances is not detrimental the mother and the child. The exposure limits laid down in the list the Swiss National Accident Insurance (CNA) and the applicable
Switzerland in particular, must be respected.

Are considered particularly dangerous for the mother and child:
a. substances that are carcinogenic, mutagenic or toxic to
reproduction and wear characterization of type R40, R45, R46, R49, R60,
R61, R62, R63, R64 or a combination of these characterizations in accordance
the order of 18 May 2005 on chimiques13 products;
b. Mercury and its derivatives;
c. inhibitors of mitosis;
d. carbon monoxide.
Ordinance No. 1 of 2000 §10,13
Ordinance regarding maternity protection

Risk assessment

Employers should take all necessary measures in order to assess the existent risks for pregnant women and nursing mothers at the undertaking.

Any company with a hazardous activities or painful for the mother or
for the child within the meaning of art. 62 is, in case of pregnancy of a worker, required to give the necessary risk analysis to a specialist on preventing accidents.
The risk analysis before the entry into service of women in a business or
part of a business involved in hazardous activities, and is repeated in any change important working conditions.

The evaluation of the health of the pregnant woman or nursing mother is the responsibility of treating physician following the worker during the
pregnancy and motherhood.

Pregnant women, women who have recently given birth and nursing mothers shall only perform dangerous or strenuous work if, on the basis of a risk analysis, it has been assessed that there is no threat to their health or that of the child, and/or that safety measures have been taken in this respect. Anyway, there are some special activities prohibited in any case for these workers.

The risk assessment should be provided by an expert in occupational safety and health and all appropriate information shall be given to the concerned female workers. The medical doctor that evaluates the pregnant worker shall certify if she may continue working or not and the changes the employer shall adopt or if she cannot continue working.
The employer is responsible for the costs of risk assessment.
Ordinance No. 1 of 2000 §§ 62, 63, 64
Ordinance regarding maternity protection §2

» Assessment of workplace risks

please see risk assessment above.

» Adaptation of conditions of work

The risk assessment should be provided by an expert in occupational safety and health and all appropriate information shall be given to the concerned female workers.

The medical doctor that follow the pregnant worker during pregnancy shall certify if she may continue working or not and the changes the employer shall adopt or if she cannot continue working.
The employer is responsible for the costs of risk assessment.
Ordinance regarding maternity protection
Ordinance No. 1 of 2000

» Transfer to another post

please see risk assessment above.

» Paid/unpaid leave

A pregnant employee who can not be transferred to other duties is entitled to 80 per cent of her salary, including a fair compensation for any loss of remuneration in kind
Labour Act § 35

» Right to return

not mentioned.
Ordinance No. 1 of 2000
Ordinance regarding maternity protection

Particular risks


» Arduous work (manual lifting, carrying, pushing or pulling of loads)

Is considered as dangerous or strenuous the work in handling loads over 5 kg and the occasional handling of loads over 10 kg during the first 6 months of pregnancy. These activities are prohibited for women after the seventh month of pregnancy
Ordinance regarding maternity protection § 7

» Work involving exposure to biological, chemical or physical agents

Pregnant women, women who have recently given birth and nursing mothers may not be employed in activities exposing them to certain micro-organisms or to chemical dangerous substances, such as mercury and carbon oxide, except if, on the basis of a risk analysis, it has been assessed that there is no threat to their health or that of the child. In the case of pregnant women exposed to radiation, a maximum of 2 mSv (millisieverts) dose is permitted during the whole duration of pregnancy. Nursing mothers shall not work with radioactive substances if there is a risk of incorporation or contamination for them.
Ordinance regarding maternity protection § 10, 12

» Work involving physical strain (prolonged periods of sitting, standing, exposure to extreme temperatures, vibration)

Is considered as dangerous or strenuous the work in temperatures under -5° C or over + 28° C, as well as those exposing the worker to a high level of humidity. It is prohibited to protected women to work in places where noise is over 85 decibel.

Tasks requiring movements and postures causing
early fatigue are deemed dangerous or arduous work performed during pregnancy and until the 16th week after delivery, which require movements and awkward postures repeatedly as the act of stretching or bending of importantly, stay crouched or leaning forward, and the activities imposing a static position without the possibility of movement or involving the impact of shocks, jolts or vibrations.

Pregnant women should not be assigned to jobs where sound pressure level is greater than or equal to 85 dB (A) (LEX 8 h). the exposure to infrasound and ultrasound should be assessed separately.
Ordinance regarding maternity protection § 8, 9, 11
Ordinance No. 1 of 2000 § 62

NON-DISCRIMINATION AND EMPLOYMENT SECURITY


Anti-discrimination measures

Discrimination is prohibited on the basis of pregnancy. This prohibition applies to recruitment, allocation of duties, arrangement of working conditions, wage, training, promotion and termination of employment.
Federal Equality Act § 3

Prohibition of pregnancy testing

There is not express legal provision in this sense.
Labour Act
Federal Equality Act

Protection from discriminatory dismissal

After the trial period has elapsed, dismissal with notice is prohibited during pregnancy and during 16 weeks after birth. If notice has been given before the commencement of the protected period and has not expired at the beginning of this period, the notice is suspended and continues after the protected period has ended.

In general, dismissal without notice is permitted for a "valid reason" in the private sector and in the public service.
Code of Obligations § 336c, 337

Burden of proof

Where the employee establishes facts from which discrimination appears as being "plausible" , discrimination may be presumed to exist, it is for the employer to prove that there has been no contravention of the principle of equal treatment. This provision applies to allocation of duties, arrangement of working conditions, wage, training, promotion and termination of employment but however not to recruitment.
Federal Equality Act § 6

Guaranteed right to return to work

Not identified

Results generated on: 30th July 2014 at 13:08:01.
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