Switzerland Update: Adoption Leave

In the case of an adoption, both parents are currently not entitled to legally regulated leave or compensation for the time when the adopted child is initially settling-in to the new family. This will change in the future as both adoptive mothers and fathers will have a statutory right to two weeks’ paid adoption leave.

Starting point: No paid leave time in case of adoption

Only recently, a proposal for paid paternity leave was approved in the referendum of 27 September 2020 and the resulting law came into force on 1 January 2021. Since then, fathers can take two weeks of paid paternity leave within six months of the birth of their child.

However, the call for more generous parental leave models has not only been felt in the wake of improved gender equality. The growing need for care and nursing, the new types of family structures as well as the steadily increasing employment rate among women have also led to a reform in the area of balancing gainful employment and child or family care. Since 1 January 2021 and 1 July 2021, the law has provided an entitlement to paid care leave of up to three days for the necessary care of relatives and up to 14 weeks for the care of children with serious health problems.

The extension of leave for mothers and fathers and the resulting improvement in the compatibility of family and gainful employment have so far not extended to the area of adoption. Although the issue of an adoption allowance had already been the subject of several parliamentary debates, parents who adopted a child had until now had no legal entitlement to leave when the child joined the family.

The existing legal discrepancy in this respect between the child/parent relationship created by birth and the comparable challenges faced by adoptive parents was considered outdated in the parliamentary deliberations.

New: Two weeks adoption leave

Until now, it was up to the cantons to take action at cantonal level and provide for adoption allowance. However, only two cantons had made use of this competence granted by the Federal Act on Compensation for Loss of Earnings (EOG).

The parliamentary initiative “Introduction of an Adoption Allowance” of 12 December 2013 called for the introduction of a twelve-week adoption leave regulated by federal law and compensated via the compensation scheme for loss of earnings (in German Erwerbsersatzordnung [EO]). Out of consideration for the economic concerns, the Committee for Social Security and Health of the Swiss National Council (SGK-N) reduced the duration of the leave to two weeks in the draft proposal. The proposal of the SGK-N was heatedly discussed during the consultation process.

Despite all opposition, the SGK-N passed a draft bill for the attention of the Swiss National Council on 5 July 2019. The amendment to the law subsequently drafted by the parliament was adopted in the final vote on 1 October 2021.

The referendum period against the corresponding parliamentary bill expired unused on 20 January 2022. According to the Federal Social Insurance Office (FSIO), the amendments are expected to enter into force on 1 January 2023 but the Federal Council still has to take a final decision on the date.

Who is entitled to paid adoption leave?

Persons who adopt a child less than four years old and (i) have been compulsorily insured within the meaning of the Federal Act on Old Age and Survivors’ Insurance for the nine months immediately prior to taking in the child, (ii) have been gainfully employed for at least five months during this period and (iii) have been employed or self-employed at the time of taking in the child or have worked in the spouse’s business and received a cash salary are entitled to adoption allowance (see Article 16t para. 1 revEOG).

Adoption leave is a necessary supplement to adoption allowance. However, according to the Swiss Code of Obligations (CO), adoption leave shall only be granted if it is also compensated via the EO (see Article 329j para. 1 revCO). In other words, only those who meet the requirements for an adoption allowance under the EOG are also entitled to adoption leave.

In the case of a joint adoption, an entitlement to paid adoption leave arises only once, and only if both parents meet the relevant requirements (see Article 16t para. 2 revEOG). However, out of respect for equality in the family, the law provides that the adoptive parents are free to choose which of them receives the compensation in the form of paid leave. The paid leave can also be split between the parents (see Article 16t para. 3 revEOG as well as Article 329j para. 3 revCO).

Analogous to the birth of multiple children, which also triggers only one maternity allowance, only one allowance is to be paid in the case of a simultaneous adoption of several children (see Article 16t para. 4 revEOG).

Those who adopt their partner’s child (stepchild) are not entitled to paid adoption leave (see Article 16t para. 5 revEOG).

How much is the financial compensation?

The compensation is paid as a daily allowance. The maximum entitlement is 14 daily allowances. If the leave is taken on a weekly basis, seven daily allowances shall be paid per week. If the leave is taken on a daily basis, an additional two daily allowances shall be paid for every five days compensated (see Article 16v revEOG).

As in the case of maternity or paternity allowances, the daily allowance from the EO amounts to 80% of the average income from gainful employment earned before the start of the leave, but not more than CHF 196 per day (see Article 16w in conjunction with Art. 16f revEOG).

When can adoption leave be taken?

In contrast to maternity leave, which begins on the birth date of the child, adoption leave does not have to be taken on the day the child joins the family. The person entitled is free to take it within one year of adopting the child (see Article 16u revEOG). Within this framework period, it is possible to choose whether the adoption leave is taken on a weekly or daily basis (see Article 329j para. 4 revCO).

The limitation period for claiming adoption allowance is five years after the expiry of the framework period. After expiry of this period, the claim for untaken allowance lapses (see Article 20 para. 1(e) revEOG)

Outlook

The new law now also supports all those families who have decided to adopt a child. Nevertheless, we have probably not heard the last word on the issue of paid parental leave. For example, there are already discussions about adopting similar provisions to the current EU law. In the so-called EU Directive on Work-Life Balance, the EU member states have committed themselves to introducing an individual entitlement to parental leave of at least four months for all employees upon the birth or adoption of a child. The EU Directive on Work-Life Balance must be implemented by EU member states by 2 August 2022. In view of the recent past, it is probably only a matter of time before legislators in Switzerland also have to deal with this topic.

By Anela Lucic, Vischer, Switzerland, a Transatlantic Law International Affiliated Firm.

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