Premature termination of entitlement to maternity compensation upon resumption of partial employment above the minor employment threshold

Facts

Parties and procedural history:

The complainant ([A.]), a member of the National Council and self-employed, first applied to the compensation fund of the Canton of Bern for maternity compensation in March 2019 and again in May 2021, each time indicating the birth of a child. The compensation fund initially granted the compensation until 30 March 2019 and 4 July 2021 respectively, but later demanded repayment of the paid-out daily allowances after learning of A.’s participation in parliamentary sessions (from 4 March 2019 and on 28 April and 9 June 2021). The compensation fund considered this a premature resumption of employment and thus a loss of entitlement pursuant to Art. 16d para. 3 LECA and Art. 25 LECO.

A.’s appeal against the repayment order was dismissed by the Administrative Court of the Canton of Bern in judgments of 14 July 2021 (first proceedings) and 15 April 2024 (second proceedings). In the first proceedings, the Federal Supreme Court had already confirmed the lower court’s view (Judgment 9C_469/2021 of 8 March 2022, BGE 148 V 253). In the second proceedings, the Federal Supreme Court now confirmed A.’s obligation to repay the unduly received daily allowances in its Judgment 9C_290/2024 of 3 October 2024.

Factual presentation:

[A.] earned an annual income of CHF 65,160 (average CHF 5,430 per month) from her activity as a member of the National Council, which significantly exceeds the minor employment threshold of CHF 2,300 pursuant to Art. 34d para. 1 OASIO. The lower court found that participation in parliamentary sessions during the maternity period qualifies as partial employment, as the income earned exceeds the relevant threshold. [A.] argued that the minor employment threshold of CHF 2,300 should not be prorated to the duration of the maternity period (14 weeks) and that she was therefore entitled to full compensation despite occasional participation in sessions.

Considerations

1. Termination of entitlement upon resumption of employment:

The Federal Supreme Court confirms that entitlement to maternity compensation pursuant to Art. 16d para. 3 LECA terminates prematurely if the mother resumes employment. This legal consequence applies regardless of the extent of employment, as follows from Art. 25 LECO. The resumption of part-time employment therefore constitutes employment within the meaning of these provisions and terminates the entitlement. An exception applies only to marginal ancillary activities yielding an annual wage of at most CHF 2,300 (Art. 34d para. 1 OASIO).

2. No general exemption for earned income:

The complainant argued that the minor employment threshold of CHF 2,300 should not be prorated to the 14-week maternity period and that even lower income during this period should not terminate the entitlement. The Federal Supreme Court rejects this view. It emphasises that the statutory provisions are clear and unambiguous: entitlement terminates on the day employment is resumed, regardless of the scope of the activity or the income earned. There is no general exemption for earned income during the maternity period. The case law in BGE 139 V 250 merely defines what constitutes a marginal ancillary activity, but does not provide for an exemption for any employment.

3. No proration of the minor employment threshold:

The complainant relied on the INO guidelines stating that the minor employment threshold of CHF 2,300 is not prorated. The Federal Supreme Court notes that this argument is irrelevant to the assessment of entitlement to maternity compensation. The decisive factor is solely whether the resumed activity…