Vacations in employment law: vacation entitlement and protection against dismissal
Following on from our last legal article deciphering the evolution of vacations in employment law, this month our partner CJE, Avocats, Conseillers d’Entreprises, looks at the impact of vacations on vacation entitlement and protection against dismissal.
The leaves presented in our last article are repeated and developed here according to two categories: leaves linked to the arrival of the child (maternity leave, other parent’s leave, leave in the event of death of the other parent shortly after birth and adoption leave) and other leaves (for the care of relatives, for the care of a child seriously affected in health due to illness or accident). Before delving into these different types of leave again, we’d like to point out a clarification concerning the previous article. On the subject of caring for a child whose health has been seriously impaired by illness or accident, it was stated that it is the employer’s responsibility to check the medical conditions for granting benefits, as the compensation fund does not do this. For the sake of clarity, we would like to clarify that the compensation fund verifies whether the form contains the medical certificate certifying that the child is seriously ill within the meaning of art. 16o LAPG. In principle, it is bound by the doctor’s attestation and is therefore not obliged to check itself whether the medical conditions referred to in art. 16o LAPG are met. If the compensation fund has well-founded doubts, based for example on other elements in the file, as to the veracity of the medical certificate and/or the seriousness of the health impairment, it may submit the file to the FSIO. [/box]
Leave related to the arrival of a child
Maternity leave
Protection against dismissal
The employee is protected against dismissal throughout the pregnancy and for 16 weeks after the birth. The employee continues to be protected against dismissal in the event of extended maternity leave due to hospitalization of the newborn child, for as long as the maternity leave lasts, but for a maximum of 56 days. The contractual relationship of an employee who does not intend to return to work after giving birth is automatically terminated at the latest on the last day for which she receives loss-of-earnings benefits.
Vacations
If the employee is on maternity leave, vacation entitlement cannot be reduced.
Leave for the other parent (previously paternity leave)
Termination of employment
The other parent’s leave is not a cause for protection against dismissal. If the father, respectively the mother’s wife, is dismissed without having taken the full entitlement to the other parent’s leave, the notice period is extended by the number of days of leave remaining when the leave period begins and does not extend to the end of a calendar month or other deadline.
Vacations
When the employee benefits from leave taken by the other parent, vacation entitlement cannot be reduced.
Leave in the event of death of the other parent shortly after birth
Termination of employment
After the trial period, the employer may not terminate the contract:
- In the event of the death of the other parent (father or mother’s wife) during the six months following the child’s birth, during the additional two weeks’ leave to which the mother is entitled; protection against dismissal begins from the day following the death until the last day of leave taken, but for a maximum of three months from the 16 weeks following childbirth.
- In the event of the mother’s death, during the 14-week leave to which the other parent (father or mother’s wife) is entitled.
Vacations
If the employee is granted leave due to the death of the other parent, vacation entitlement cannot be reduced.
Adoption leave
Termination of employment
Adoption leave is not a cause for protection against leave and has no impact on the termination of the employment relationship.
Vacations
Adoption leave does not reduce vacation entitlement.
Other vacations
Leave to care for relatives
Termination of employment
A dismissal served on a caregiver during such an absence is valid, and such an absence during the leave period does not suspend it.
Vacations
Leave to care for relatives does not reduce vacation entitlement.
Leave to care for a child seriously affected by illness or accident
Termination of employment
After the probationary period and for as long as the entitlement to care leave lasts, the parent is protected against dismissal for a maximum period of six months from the day on which the framework period begins to run. If the dismissal was given before the start of the protection period and the notice period has not expired at the start of this period, the period is suspended and continues to run until the end of the period (normally the end of one month), once the parent’s ability to work has been fully restored, or at the latest on expiry of the maximum protection period.
Vacations
Article 329b para. 3 of the Swiss Code of Obligations (CO) prohibits any reduction in vacation time in the event of absence to care for a child seriously affected by illness or accident.
This content was written by our partner CJE, Avocats, Conseillers d’Entreprises.