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Unlike the FMLA, which covers all public and many private employers, the Healthy Delaware Families Act applies to many private employers. Delaware’s general leave provisions apply only to state government employers. . Pregnancy accommodation and domestic violence provisions (which include leave), as well as emergency responder leave also apply to private employers.
Enacted in May 2022, the Healthy Delaware Families Act will apply to employers with at least 10 employees in the state during the previous 12 months. Employees may begin taking the job-protected paid leave January 1, 2026.
Employers may have private plans as long as they meet the requirements of the law.
Employees will be eligibile to take the leave if they primarily report for work at a worksite in Delaware, have worked for the employer for at least 12 months, and have worked at least 1,250 hours during the previous 12-month period.
The amount of leave to which employees are entitled will depend upon how many employees at the company.
Employees may take up to 12 weeks per year for parental leave and an aggregate of six weeks in any 24-month period for other qualifying reasons, for a cumulative total of up to 12 weeks of benefits per year.
Employees may take the leave intermittently or on a reduced schedule when medically necessary and supported by a certification.
If employees are eligible for both the FMLA and the state paid leave and the reason qualifies for both, the leaves may run concurrently.
Both employers and employees contribute into the fund for the paid leave. Contributions begin January 1, 2025.
Reasons for leave
Eligible employees may take the paid leave for the following reasons:
Employers must maintain group health care coverage during leave in the same manner as before leave began.
After leave, employees are entitled to be restored to their position or an equivalent one.
Covered employers must provide written notice of the state law to each employee upon hire and when the employees put the employer on notice of the need for leave.
Employees are to provide notice of the need for leave 30 days in advance or as soon as practicable.
To be eligible for leave benefits, an employee must have been continuously employed on a full-time basis for at least 1 year at the time of birth or placement of a child.
Unlike FMLA, there is no worksite provision.
Employees are entitled to 12 weeks of paid leave.
A full-time or part-time employee of the state is entitled to use accumulated sick leave upon the birth of a child of the employee, or upon the adoption of such a child.
The leave may run concurrently with federal FMLA leave and state short-term disability for the birth of a child.
An eligible employee may take leave for the birth or adoption of a minor child who is six years old or younger.
For child care purposes, a full-time or part-time employee can utilize accumulated sick leave for the birth of the employee’s child or for the adoption by the employee of a pre-kindergarten age child as per the rules and regulations adopted by the Merit Employee Relations Board or State Personnel Office for maternity leave.
If a full-time female state employee has a pregnancy complication that warrants an extended hospitalization of herself or her newborn infant, she may take up to six weeks of unpaid leave following the newborn’s discharge from the hospital even if their FMLA benefits have been exhausted.
There is no state provision which requires an employer to maintain coverage under any group health plan while the employee is on leave. FMLA, however, requires that covered employers continue to provide group health insurance.
Similar to the FMLA, Delaware provides that employees must be reinstated in the position that they held at the time of their leave of absence.
Employees are to provide at least 30 days’ advance notice of the need for leave, when practicable. When 30 days are not practicable, advance notice is to be given as soon as practicable.
For adoption, before leave is granted the employee must provide documentation that they have applied for the adoption and that the travel is required for the adoption to be approved.
Employers are subject to the provisions if they have four or more employees within the state. Employees are eligible for protections, including being entitled to leave, if they have limitations related to pregnancy, including time off to recover from childbirth.
While the law does not specifically indicate that employees have job protection, employers may not take adverse actions against an employee in the terms, conditions, or privileges of employment for requesting or using a reasonable accommodation.
Employers may not require employees to take leave if another reasonable accommodation can be provided to the known limitations related to the employee’s pregnancy. Employers may not fail or refuse to make reasonable accommodations to the known limitations related to pregnancy unless they can demonstrate that the accommodation would pose an undue hardship on the operation of the business.
Employers are prohibited from failing or refusing to make reasonable accommodations to an employee’s limitations related to domestic violence, a sexual offense, or stalking unless they can demonstrate that the accommodation would pose an undue hardship.
Reasonable accommodations could include schedule changes, allowing the employee to use accrued leave, or a change in job duties. The law does not, however, provide for a specific period of leave.
Employers may require employees to verify the offense and need for an accommodation via an official document, such as a court order, or by a reliable third-party professional such as a law enforcement agency or officer; a domestic violence, domestic abuse, or sexual assault service provider; or a health care provider.
Employers may not terminate, demote, or take any other disciplinary action against any employee who is a volunteer emergency responder if:
"Volunteer emergency responder" means a volunteer firefighter, a member of a ladies auxiliary of a volunteer fire company, volunteer emergency medical technician and/or a volunteer fire police officer.
This law does not apply to:
Employees must notify the employer, in accordance with the employer’s existing policies, that they may be absent from work upon the occurrence of an event.
Employers may subtract from an employee’s earned wages any time such employee is away from work for responding to emergencies.
Employers may request that employees provide within 7 days, a written statement signed by the individual in charge of the volunteer department or another individual authorized to act for such individual that includes the following:
Employers may request that employees who are absent due to injury sustained while responding to an emergency, provide within 5 days, a written statement signed by the relevant medical professional or another individual authorized to act for such medical professional that includes the following:
Delaware Department of Labor
Delaware Code, Title 19 - Labor, Part V - Family and Medical Leave Insurance Program, Chapter 37 - Family and Medical Leave Insurance Program (Healthy Delaware Families Act)
See also SB 1
Delaware Code Title 29 Part V Chapter 51 Sections 5115 and 5120
Healthy Delaware Families Act rules
Delaware Code, Title 19, Chapter 7, Subchapter II, Sections 710 – 716 (pregnancy and domestic violence accommodation)
Delaware Code, Title 19, Chapter 18, Section 1801 et seq (Volunteer Emergency Responders Job Protection Act)