Maternity leave: Rights of mothers during and after pregnancy

Most working women are entitled to maternity leave of up to 14 weeks after giving birth. This is legally stipulated in the Swiss Code of Obligations (CO). If the newborn has to stay in hospital after the birth, the leave is extended accordingly (Article 329f CO). During this time, new mothers remain regularly insured against accidents. Maternity leave must be granted in addition to normal holidays and may not be deducted from them. Regular holidays can only be reduced in exceptional cases, for example if the employee was unable to work for more than two months during the pregnancy (Article 329b, paragraph 3 CO).

Can maternity leave be changed?

In principle, maternity leave under Article 329f CO is one of the mandatory requirements under Article 362 CO. This means that employment contracts of any kind may only deviate from the law if this is done in favour of the employee. Maternity leave may therefore be extended, but never shortened. However, an entitlement to longer maternity leave can also arise without this being stipulated in the employment contract. This is the case, for example, if the newborn has to be hospitalised after birth. Maternity leave is then extended depending on the length of hospitalisation, but by a maximum of 56 days (Article 329f, paragraph 2 CO).

In order to protect mother and child, employers are almost always obliged to continue paying their employees a certain salary in the weeks following the birth. However, self-employed and unemployed persons also receive maternity compensation in most cases. Depending on the situation, it is paid to the mother by the employer or directly by the compensation fund. The provisions on compensation during maternity leave are set out in the Federal Law on Income Compensation (EOG).

Who is entitled to maternity compensation?

The EOG is part of the social insurance system and is also responsible for payments during maternity leave. According to Article 16b EOG, persons who fulfil the following requirements are entitled to this:

• Old-age and survivors' insurance (AHV) during the entire nine months of pregnancy as compulsory insurance
• Employees must have worked for at least five months during the pregnancy, regardless of the workload (work in another EU or EFTA country also counts)
• An employment relationship exists at the time of confinement (this applies to employees as well as self-employed persons and women who work in their spouse's business)
• Alternatively: Receipt of daily unemployment benefit

The entitlement to maternity compensation only arises from the day of birth and can also be claimed after the 14 weeks have expired - the entitlement remains valid for up to five years.

How much is the maternity compensation?

Maternity compensation is organised as a daily allowance. It is paid up to a maximum of 14 weeks after the birth (98 days), starting on the day of confinement. According to Article 16e and Article 16f EOG, the compensation amounts to 80% of the employee's salary. The calculation is based on the last salary paid or an average of the last few months before the birth. The maximum rate is CHF 196 per day. If the rate calculated from the employee's income is higher than this, it is reduced to the maximum rate payable. In concrete terms, this means If the employee's salary was previously more than CHF 7,350 per month, the compensation will be reduced to the maximum daily rate of CHF 196.

Here is an example calculation to illustrate this:

Before the birth of her child, the employee received a salary of CHF 5,100 per month.

5,100 CHF/30 = 170 CHF

80 % of CHF 170 = CHF 136 per day

Maximum total entitlement over 98 days: 136 CHF*98 days = 13,328 CHF

For self-employed persons, the daily rate is calculated on the basis of the annual income. In general, income replacement is treated as income. This means that AHV, IV and EO contributions may be deducted from it.

Maternity compensation for hospitalisation of the newborn child

Since 1 July 2021, there have been new regulations on the extension of maternity compensation in certain cases. If the newborn has to spend a longer period (at least two weeks) in hospital, the maternity compensation can be extended together with the maternity leave. The duration of the extension depends on the length of the hospitalisation, but is limited to a maximum of 56 days and can only be claimed if the mother returns to work after the end of her maternity leave (Article 16c, paragraph 3 EOG).

Maternity compensation for unemployed persons

In many cases, unemployed women are also entitled to maternity benefits after the birth of their child. To do so, they must have received daily unemployment benefit during the months of pregnancy. From the day of the birth, this is paused and payment of maternity compensation begins. The amount is generally based on the salary that the mother received before she became unemployed (between 70 and 80 % of the salary). In any case, the compensation is at least as high as the daily unemployment benefit. Once the payment has ended, the mother can reapply for daily unemployment compensation.

As a new mother, you have a certain amount of freedom to decide for yourself when you want to return to work. However, there are certain regulations here too. For example, women who have recently given birth may not be employed under any circumstances up to eight weeks after the birth - even if you expressly wish to do so. After these eight weeks and until the 16th week after the birth, the decision is yours. You can return to work, but your employer cannot force you to do so before the end of these 16 weeks (Article 35a of the Labour Act (ArG)). If you return to work before the 98 days of maternity compensation have elapsed, you will forfeit your entitlement. Payments will be stopped from the date on which you return to work. An employment lawyer can advise you in detail in a consultation and, if you wish, support you in the further process.

Pregnant and breastfeeding women are a group that is afforded special protection in the workplace. In general, pregnancy is by no means considered an illness. You can therefore continue to work until shortly before the birth - if you wish. However, if you feel unwell, you can stay at home at any time and without a medical certificate.

Protection against dismissal

You are strictly protected against dismissal throughout your pregnancy and up to 16 weeks after the birth. Dismissals that were previously issued are paused for this period - the notice period only resumes afterwards (Article 336c CO). The protection against dismissal applies until the end of the extended maternity leave that may arise due to hospitalisation of the newborn.

Health protection in the workplace

Pregnant women should be given special protection in the workplace (Article 35 ArG). Accordingly, you should not carry out activities that could jeopardise your well-being or that of your child during your pregnancy and while breastfeeding. In particular, you should avoid lifting heavy objects and standing for long periods of time. As far as possible, your employer must assign you other tasks and grant you additional break times. If your duties are completely cancelled, your employer must pay you at least 80% of your salary and an appropriate compensation for any loss of remuneration in kind.

Breastfeeding

As a mother, you are permitted to breastfeed your child on or off the premises during its first year of life. The time during which you are breastfeeding may not be deducted from your working hours and must therefore be deducted from your salary as normal. If you work part-time for up to four hours, you are entitled to 30 minutes a day; if you work up to seven hours, you are entitled to 60 minutes. If you work more than seven hours, you are entitled to 90 minutes of breastfeeding time.