On 12 May 2026, the Socialists of French-speaking Switzerland tabled an initiative calling on the Vaud State Council to exercise its right of cantonal initiative before the Federal Assembly to propose an amendment to the Law on Compensation for Loss of Earnings (LAPG) and the Swiss Code of Obligations (CO). They are calling for leave to care for a child whose health is seriously affected by illness or an accident to apply not only to minors but also to children over the age of 18 up to the age of 25[1][1].
This initiative provides an opportunity to briefly recall the nature of this leave granted to parents, provided for in Article 329i CO and introduced in 2021.
Article 329i CO reads as follows: ‘If an employee is entitled to a care allowance within the meaning of Articles 16n to 16s of the Federal Law on Family Allowances (LAPG) because their child is seriously ill or injured as a result of an illness or accident, they are entitled to care leave of up to fourteen weeks.
Parental leave must be taken within a period of 18 months. This period begins on the day on which the first daily allowance is paid.
If both parents work, each is entitled to a maximum of seven weeks’ parental leave. They may agree to share the leave differently.
The leave may be taken as a single block or in individual days.
The employer must be informed without delay of the arrangements under which the leave is taken and of any changes.
The right to leave is granted to parents of seriously ill children. The parent-child relationship is that defined in Article 252 of the Swiss Civil Code (CC), regardless of the parents’ marital status.
The right to leave is granted only for minor children, i.e. those under the age of 18.
However, if the 18-month reference period began before the child turned 18, the entitlement to leave continues once the child reaches the age of majority.
A serious health impairment is not defined in the CO but is defined in Article 16o LAPG.
The child is deemed to have a serious health impairment if they have undergone a major change in their physical or mental condition; if the progression or outcome of this change is difficult to predict or if it is to be expected that it will lead to a lasting or worsening health impairment or to death; if the child has an increased need for care from one of the parents, and if at least one of the parents must cease gainful employment to care for the child.
To be eligible for the leave and the allowance, it is sufficient for one of the parents to be in paid employment or self-employed. No minimum period of insurance or prior employment is required but the leave, as mentioned herein above, must be compensated by the loss of earnings schemes under the Federal Act on Compensation for Loss of Earnings (LAPG).
Care leave lasts for a maximum of fourteen weeks and must be taken within the 18-month framework period. This framework period begins on the day the first daily allowance is paid.
The leave may be taken as a single block or in individual days.
If both parents work, they are each entitled to a maximum of seven weeks. However, they may agree to share the leave differently.
Indeed, under Article 336c § 1 lit c quater CO, ‘after the probationary period, the employer may not terminate the employee’s contract for as long as the entitlement to care leave under Article 329i lasts, for a maximum period of six months from the day on which the reference period begins to run’.
An employee who is entitled to such leave may unilaterally determine the timing of leave taken to care for a child who is seriously ill or has suffered an accident. However, this right is not absolute and is subject to the principles of diligence and loyalty. Under this principle, the employee must take into account the urgent and compelling needs of the employer.
With a few exceptions, leave to care for a child whose health is seriously affected by illness or accident immediately after birth is taken after maternity benefits have been exhausted.
The first difficulty lies in the fact that, if both parents are in paid employment, each is entitled to half of the care leave, i.e. seven weeks. They do, however, have the option of sharing the leave ‘entitlement’ in a different way, without the employer having a say in the matter.
Whilst the employer has no say in how the ‘credit’ is divided, the employer must nevertheless be informed of the arrangements under which the leave is taken and of any changes in the parents’ circumstances, such as one parent taking up a new job, one parent ceasing employment, etc.
The employee therefore has a duty to notify the employer without delay so that the employer can make the necessary arrangements. The employer is also entitled to ask the employee about the arrangements for sharing the care and any changes in the parents’ circumstances.
The application for loss of earnings allowance is made to a single compensation fund. Thus, if both parents share the entitlement to the allowance, the fund of the parent receiving the first daily allowance is responsible.
The application is made by completing form 318.744, which is available online. The application must be completed for the entire duration of the entitlement. It must also include the other parent’s details, and it is particularly important to state whether the leave is shared between the parents.
The employer must then report, at the end of each month, the days of leave taken and the salary paid during the period of entitlement to the allowance. The employer must use form 318.746, which is also available online.
Another difficulty for the employer lies in setting the date of the leave and in the fact that this requires the employer to organise the work and make arrangements to cover for an employee’s absence. The difficulty is all the greater as the employee has the right to set the leave unilaterally.
A further issue concerns the proof of serious health impairment, which is provided by means of a medical certificate.
It is indeed the employer’s responsibility to assess the validity of the medical certificate where necessary. In case of doubt, the employer may request a second opinion at its own expense. If the employee refuses to undergo a second opinion, some Swiss authors consider that the employer is not obliged to grant the leave. Furthermore, as the framework period has a specific duration, the employer should be able to request a new certificate after a few months, confirming that the health impairment persists.
Moreover, as mentioned above, Article 329i CO provides a new protection in the event of termination of the employment contract.
Furthermore, the employer may not reduce holiday entitlement in the event of leave under Article 329i CO.
Finally, according to some authors, the employer would be obliged to top up the loss of earnings allowance so that it effectively covers 80% of the salary, as provided for in Article 324b CO.
Without taking a position on the merits of the request by the Socialists of French-speaking Switzerland, it is important to bear these difficulties in mind. It is also important to bear in mind that the same health impairment may be deemed more or less serious depending on the child’s age. The increased need for care from one of the parents may also vary depending on the child’s age. The older the child is, or even if they are independent, the less the need for care might be considered to be increased.
[1] https://ps-vd.ch/actualites/jusqua-25-ans-les-socialistes-romands-veulent-etendre-le-conge-prevu-pour-les-parents-denfants-malades/