(July 3, 2019) On June 20, 2019, the Swiss Federal Assembly (Bundesversammlung), the Swiss parliament, took a significant step toward adopting paid paternity leave provisions. The Swiss Council of States (Ständerat), the upper chamber of parliament, agreed to a parliamentary initiative that would introduce two weeks of paid paternity leave. (Parlamentarische Initiative SGK-SR. Indirekter Gegenentwurf zur Vaterschaftsurlaubs-Initiative [Parliamentary Initiative SGK-SR. Indirect Counterproposal to Paternity Leave-Initiative] (June 20, 2019), Federal Assembly website; Parlamentarische Initiative Indirekter Gegenentwurf zur Vaterschaftsurlaubs-Initiative. Bericht der Kommission für soziale Sicherheit und Gesundheit des Ständerats [Parliamentary Initiative. Indirect Counterproposal to Paternity Leave-Initiative. Report of the Commission on Social Security and Health of the Council of States] (Apr. 15, 2019), BUNDESBLATT [BBl.] [FEDERAL GAZETTE] 1308 (2019).) The proposal is a direct counterproposal to a popular initiative filed on July 4, 2017, titled “For Common Sense Paternity Leave – To the Benefit of the Whole Family,” which requests the introduction of four weeks’ paid paternity leave. (Eidgenössische Volksinitiative “Für einen vernünftigen Vaterschaftsurlaub –zum Nutzen der ganzen Familie” [Swiss Federal Popular Initiative “For Common Sense Paternity Leave – To the Benefit of the Whole Family”] (May 10, 2016), BBl. 1331 (2016).)
Article 116, paragraph 3 of the Swiss Constitution deals with child allowances and maternity insurance. It contains a specific mandate for the Swiss Confederation to establish maternity insurance. (BUNDESVERFASSUNG [BV] [SWISS CONSTITUTION], Apr. 18, 1999, SYSTEMATISCHE RECHTSSAMMLUNG [SR] [SYSTEMATIC COLLECTION OF LAWS] 101, art. 116, para. 3.) Even though the mandate was added to the Constitution in 1945, several initiatives failed to secure a majority, and maternity insurance was not established until 2005. (Die schweizerische Bundesverfassung Kommentar [Commentary on the Swiss Constitution] 1812 (Bernhard Ehrenzeller et al. eds., 2d ed. 2008).)
Mothers have the right to at least 14 weeks of maternity leave after giving birth. (OBLIGATIONENRECHT [OR] [CODE OF OBLIGATIONS], Apr. 1, 2017, SR 220, art. 329f.) During that time, a mother is entitled to compensation according to the Loss of Earnings Compensation Act. (Bundesgesetz über den Erwerbsersatz für Dienstleistende und bei Mutterschaft (Erwerbsersatzgesetz) [EOG] [Federal Act on the Loss of Earnings Through Military Service or Motherhood] Sept. 25, 1952, SR 834.1, art 16b.) The compensation generally equals 80% of her income but is capped at 196 Swiss francs (CHF) (around US$200) per day. (Id. arts. 16e, 16f.)
Currently, there are no statutory provisions that provide for paternity leave. However, when a child is born, the Code of Obligations permits fathers to take “special days off,” which can be used to deal with any personal matter, such as moving or getting married. (CODE OF OBLIGATIONS art. 329, para. 3.) Under these regulations, fathers commonly get one to two days off work.
Content of the Popular Initiative and the Counterproposal
The initiative and the counterproposal suggest that paternity leave should be based on the same legal provisions as those for maternity leave. Both proposals seek to amend the Code of Obligations to provide fathers with the right to take time off work after the birth of a child and compensation through the Loss of Earnings Compensation Act. (Eidgenössische Volksinitiative at 1331; Parlamentarische Initiative. Indirekter Gegenentwurf zur Vaterschaftsurlaubs-Initiative at 1308.) The popular initiative and the counterproposal, however, differ with regard to the length of paid paternity leave.
In addition, the popular initiative and the counterproposal interpret article 116, paragraph 3 of the Swiss Constitution differently. The Federal Assembly came to the conclusion that the mandate contained in article 116 can be interpreted broadly and that parliament may establish paternity insurance but is not compelled to do so. (Parlamentarische Initiative Indirekter Gegenentwurf zur Vaterschaftsurlaubs-Initiative at 1308.) The popular initiative, on the other hand, seeks to amend article 116 to introduce a clear mandate for the Federal Assembly to establish paternity insurance. (Eidgenössische Volksinitiative at 1331.)
The Swiss Constitution mandates that all constitutional amendments be subject to a mandatory referendum. (SWISS CONSTITUTION art. 140.) Popular initiatives that seek to revise the Swiss Constitution and gather the required 100,000 signatures are put to a vote. (Id. art. 139.) The Federal Assembly may submit a counterproposal. (Id.) The counterproposal at issue is not subject to a mandatory referendum because it seeks to amend only federal law and not constitutional provisions. However, the Swiss public has the opportunity to gather 50,000 signatories within 100 days of the official publication to initiate an optional referendum. (Id. art 141.)
Disagreement Between the Executive and the Parliament
The Federal Council (Bundesrat), the Swiss government, rejected both the initiative and the counterproposal, stating that the proposals would create new burdens and organizational challenges for employers. It added that the Federal Council prefers to focus its family policies on supplementary childcare, which has a long-term impact on the reconciliation of family and work. (Botschaft zur Volksinitiative «Für einen vernünftigen Vaterschaftsurlaub – zum Nutzen der ganzen Familie» [Message Concerning the Popular Initiative “For Common Sense Paternity Leave – To the Benefit of the Whole Family”] (June 1, 2018), BBl. 3699 (2018); Parlamentarische Initiative Indirekter Gegenentwurf zur Vaterschaftsurlaubs- Initiative at 1275.) However, the Commission on Social Security and Health of the Council of States decided not to follow the opinion of the Federal Council and introduced a direct counterproposal to the popular initiative on August 21, 2018. That counterproposal has now been accepted by the Council of States and will be debated in the National Council (Nationalrat), the lower chamber of parliament, as a next step. (Parlamentarische Initiative Indirekter Gegenentwurf zur Vaterschaftsurlaubs-Initiative at 1308.)
Parliament has until January 4, 2020, to conclude the deliberations on the issue. The National Council will most likely discuss the issue in its fall session, which runs from September 9 to September 27, 2019. The counterproposal appears to have the support of a majority. (Larissa Rhyn, Die Papi-Zeit wird mehrheitsfähig: Alles über die Debatte zum Vaterschaftsurlaub [Dad-Time Finds a Majority: Everything on the Debate on Paternity Leave], NEUE ZÜRCHER ZEITUNG (June 20, 2019).) If there is no referendum, the proposal will go into effect once it passes in the National Council and the popular initiative is either rejected or retracted by the petitioners. The creators of the popular initiative show no signs that they are ready to retract it and state that four weeks of paternity leave are necessary and a pragmatic solution. However, according to news reports, they are not ready to make a final determination on the status of the initiative until after the conclusion of the parliamentary process. (Rhyn, supra.)
Prepared by Anne-Cathérine Stolz, Law Library intern, under the supervision of Jenny Gesley, Foreign Law Specialist.