Facts
[A.], born in 1973, was employed by the Office for Economy and Labour of the Canton of Thurgau (AWA). On September 1, 2014, she gave birth to her daughter, who was hospitalized for medical reasons until October 31, 2014. [A.] made use of the possibility to postpone her maternity leave and took it after her daughter was discharged from the hospital, starting on November 1, 2014. The AWA ruled that [A.] was not entitled to continued payment of wages until the child was discharged from the hospital and had to take unpaid leave. The Personnel Appeals Commission and the Administrative Court of the Canton of Thurgau confirmed this order.Considerations
The Federal Supreme Court upholds A.'s appeal. It states that the principle of the primacy of federal law under Art. 49 para. 1 Cst. precludes legislation by the cantons if federal law comprehensively regulates a subject matter. The requirement of equal treatment under Art. 8 para. 1 Cst. is violated if a decree makes legal distinctions with respect to a decisive fact for the decision for which no reasonable reason is apparent.
In the present case, the cantonal personnel law provides that employees with medically certified health-related incapacity to work are entitled to full wage replacement. However, mothers who postpone the receipt of the maternity allowance due to the hospitalization of the newborn are not entitled to continued payment of wages, but must take unpaid leave. This constitutes unequal treatment, as the unreasonableness of the work performance is based on health reasons in both cases.
Furthermore, the cantonal regulation significantly impairs the free choice of mothers to make use of the postponement of the maternity allowance provided for by federal…