Delaware Joins the Family (Paid Family-Medical Leave, That Is)

On May 10, 2022, Governor John Carney signed into law the Healthy Delaware Families Act, adding Delaware to an expanding list of jurisdictions with a paid family and/or medical leave (PFML) requirement.1  The law creates a statewide paid family and medical leave insurance program funded through employer and employee contributions.  PFML contributions will begin to be required in 2025, and covered employees will be able to access benefits in 2026. The Delaware Department of Labor plans to issue regulations implementing the law.  In the interim, the following briefly highlights who and what the law covers.

Covered Uses & Amount of Leave: PFML will cover the following types of leave, although the types of leave available to employees can vary depending on how many employees their employer has.

  • Parental Leave: Birth, adoption, placement through foster care, or care for a child during the first year after the child’s birth, adoption, or placement
  • Family Caregiver Leave
    • Care for a family member with a serious health condition (will look to the definitions in the federal Family and Medical Leave Act (FMLA))
    • Qualifying military exigency (as defined in the FMLA)
  • Medical Leave: Serious health condition that makes employee unable to perform the functions of their position (as defined in the FMLA)

Employees are eligible for up to 12 weeks of paid parental leave, 6 weeks of paid family caregiver leave, or 6 weeks of paid medical leave in an application year. Employees are limited overall to 12 weeks of PFML benefits in a single application year and 6 weeks of medical and/or family caregiving leave in any 24-month period. Employees are further limited to using medical and/or family caregiving leave once in a 24-month period. If two parents employed by the same employer are entitled to parental or family caregiver leave, the employer may limit aggregate number of weeks of leave to which both may be entitled to 12 weeks during any 12-month period.

Employees may take leave on an intermittent or reduced schedule basis, but only when medically necessary and supported by documentation. Breaking up the leave schedule does not affect the overall amount of leave employees may take. Notably, benefits will not be payable for absences of less than one workday in a workweek.

PFML will run concurrently with qualifying FMLA leave. Employers may require employees to use paid time off (vacation and sick leave) before accessing PFML benefits. The use of such leave may count toward the total leave under the law, but only if employees are not required to exhaust all PTO. Additionally, employers may require that payment made under the law be made concurrently or otherwise coordinated with payments made or leave allowed under the terms of disability or family care leave policies or provisions in a collective bargaining agreement (CBA)if employers provide employees written notice of this requirement.

Covered Employers, Employees & Family Members: The law applies to employers with 10 or more employees working in Delaware. However, employers with 10 to 24 employees in Delaware must comply with the law’s parental leave requirements only; employers with 25 or more employees in Delaware are subject to the parental, family caregiving, and medical leave requirements. To determine business size, employers count covered employees and those employees the employer reasonably expects to meet coverage requirements during the previous 12 months.

Generally, covered employees are those who primarily report to work at a Delaware worksite; however, employers can elect to classify individuals who work primarily at a worksite outside Delaware as employees. Exceptions exist for certain state employees. To qualify for PFML benefits, an employee must have been employed by the employer for at least 12 months and performed 1,250 hours of service for the employer during the previous 12-month period; when evaluating these eligibility criteria, the law uses standards in the FMLA. Additionally, the employee must submit an application and comply with forthcoming regulations.

Under the law, a covered family member is a child, parent, or spouse, all of which take their definitions from the FMLA.

Contribution & Benefit Amounts: Beginning January 1, 2025, employers participating in the state plan must remit employer and employee contributions to the state.2 Employers cannot deduct more than half of the contribution from employees’ wages3; alternatively, employers may elect to pay the employee’s share of the contribution. For 2025 and 2026, contributions will equal the following percentages of wages: .32% (parental leave); .4% (medical leave); and .08% (family caregiver leave). Beginning in 2027 , the state will adjust the contribution rate based on consumer price index changes.

The minimum weekly benefit cannot be less than $100 a week unless the employee’s average weekly wage is less than $100 a week (in which case the minimum benefit is the employee’s full wage), whereas the maximum weekly benefit is 80% of the employee’s average weekly wage rounded up to the nearest dollar. For 2026 and 2027, $900 is the maximum weekly benefit. For 2028 and future years, the maximum amount will increase based on consumer price index changes, rounded to the nearest $5. PFML benefits cannot result in an employee receiving more than 100% of their weekly wage.

The first benefit payment must be made within 30 days after the employer has notified the state of an approved claim, with subsequent payments being made every two weeks.

Requesting & Documenting Leave: Employees must provide notice of their intent to take leave 30 days in advance, if known, or as soon as practicable. When employees submit a leave application, employers must collect and retain information verifying parental leave status, a serious health condition (SHC) or qualifying exigency.

For SHC-related absences, employees must support a leave request with certification from a health care provider. Generally, a certification will suffice if it includes the date the SHC began, the condition’s probable duration, and appropriate medical facts regarding the condition. Additionally, the law describes information the certification must include for family member and employee SHC-related absences, as well as intermittent or reduced schedule absences for planned medical treatment and absences. Employers may be able to request a second – and in some instances, third – opinion, which the law covers in more detail.

Employers must approve or deny an application for benefits within five business days of their receipt of a completed application that includes documentation necessary to review the claim. The employer must notify the state within three business days of approving a claim. If an employer denies a claim, it must notify the employee of the reason for the denial.

Assuming the employee is taking an approved absence, the law allows employers to reasonably require employees to recertify their absence, but generally not more than once during a 30-day period. Employers must cover recertification costs that exceed what an employee’s health insurance covers.

Job Protections & Prohibitions: The law provides job restoration rights to employees; specifically, when leave ends, employees are entitled to be restored to the position they held when leave began or to a position with equivalent seniority, status, employment benefits, pay, and other terms and conditions of employment, including fringe benefits and service credits. During leave, employers must maintain employee health care benefits during the absence until PFML benefits terminate, though employees must continue to pay their share of the cost of such benefits.

Employees cannot waive their rights under the law. Additionally, the law prohibits interfering with, restraining, or denying the exercise of, or the attempt to exercise, any right protected under the law, along with retaliation against individuals who exercise their rights under the law. An absence control policy cannot count covered leave as an occurrence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action. Protections apply to individuals who mistakenly, but in good faith, allege violations of the law.

Employer Notice Requirements: Upon hiring an employee, when an employee requests leave, and/or when an employer knows that an employee’s leave may be for a qualifying event, employers must provide notice of:

  • The employee’s right to PFML benefits and the terms under which it may be used.
  • The amount of PFML benefits.
  • The procedure for filing a PFML claim.
  • The right to job protection and benefits continuation.
  • That discrimination and retaliation for requesting, applying for, or using PFML benefits is prohibited.
  • That the employee has a right to file a complaint for violations.
  • Whether PFML benefits are available to the employee through the state or an approved private plan.

Employers must conspicuously display and maintain a poster at their place of business that contains the same information in English, Spanish, and any language that is the first language spoken by at least five percent of the employer’s workforce, if the poster has been provided by the Delaware Department of Labor.

Finally, when employees file a new claim for benefits, employers must advise them of the following:

  • PFML benefits may be subject to federal and state income taxes.
  • Requirements exist pertaining to federal and state estimated tax payments on PFML benefits.
  • Applicable taxes will be deducted and withheld from their PFML benefits payment.

The Delaware Department of Labor may adopt regulations to establish additional requirements surrounding this notice requirement and may further provide employers with a template notice.

Next Steps: Given that contributions do not begin until 2025, and the earliest an employee could take leave would be 2026, employers have some time to review the law against their existing policies and practices. In the interim, employers should monitor the website for the Delaware Department of Labor for future updates, proposed regulations, etc. Finally, employers with existing PFML policies may start to consider how they stack up against Delaware PFML, and whether operating a private plan is preferable to the participating in the state plan.

See Footnotes

1 At the time of publication, active paid family leave programs exist in seven states – California, Connecticut, Massachusetts, New Jersey, New York, Rhode Island, and Washington State – plus San Francisco, California and the District of Columbia. Four states – Colorado, Delaware, Maryland, and Oregon – have enacted paid family leave programs that are not yet in effect. Similarly, in New Hampshire, the enacted but not yet operative paid family leave program will allow private employers and employees to voluntarily participate.

2 Employers may also qualify to run their own voluntary plan, which would not require contributions to the state, but would require the employer, in part, to maintain adequate funding levels for its plan.

3 Note, however, that the law allows certain employers and employees to opt out of the contribution if the employee’s work schedule or length of employment with the employer is not expected to meet benefit eligibility requirements.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.