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Summary of differences between federal and state regulations
The federal Fair Labor Standards Act does not require payment for time not worked, nor does it regulate vacation pay, holiday pay, or other paid time off. These types of benefits are generally a matter of agreement between an employer and an employee (or the employee’s representative). Employers, however, do need to comply with applicable state laws.
Crime Victims
Under Delaware law, employers may not discharge or discipline a victim or a representative of the victim for:
- Participation at the prosecutor's request in preparation for a criminal justice proceeding,
- Attendance at a criminal justice proceeding if the attendance is reasonably necessary to protect the interests of the victim, or
- Attendance at a criminal justice proceeding in response to a subpoena.
Domestic violence accommodations
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.
General (parental) leave for state employees
Employee eligibility
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.
Leave entitlement
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.
Reasons for leave
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.
Maintenance of health benefits
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.
Job restoration
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.
Notice
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.
Jury Duty
Delaware law doesn’t require employers to pay employees for jury duty.
Paid time off (PTO)
Delaware law does not require vacation pay. However, if an employer chooses to provide paid time off benefits, it must follow the terms and conditions established in its policy.
Pregnancy accommodations
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.
Volunteer Emergency Responders
Delaware prohibits discrimination against members of a volunteer emergency responder organization, but does not explicitly require employers to provide leave for related duty. This law covers a volunteer firefighter, a member of a ladies auxiliary of a volunteer fire company, a volunteer emergency medical technician and/or a volunteer fire police officer.
Voting
Delaware doesn’t have a time-off-for-voting provision.
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Federal
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