Delaware has enacted legislation (Senate Bill 1) that creates a paid family and medical leave program in the state. The program will be funded by payroll contributions to be paid by covered employers and employees beginning Jan. 1, 2025. Employees may begin using such leave in 2026.
The Details:
Covered Employers
Employers with 10 to 24 employees are covered by the law’s parental leave requirements (see the Use of Leave section below). Larger employers are covered by all the leave requirements.
Employers with fewer than 10 employees and employers that close for 30 consecutive days or more per year aren’t covered by the law
For the purposes of counting the number of employees, those who meet the requirements of a covered individual (see below) or are reasonably expected to meet the requirements of a covered individual during the previous 12 months must be included.
Note: Employers with fewer than 10 employees may voluntarily participate in paid parental leave by providing notice to the Department of Labor. If an employer does opt-in, the employer must do so for at least 3 years.
Covered Employees:
The law defines employees as those who primarily report for work within the state. To be considered a covered individual who is eligible to use leave, the employee must:
· Have been employed with the employer for at least 12 months; and
· Have at least 1,250 hours of service with the employer during the previous 12-month period.
Use of Leave:
Beginning Jan. 1, 2026, eligible employees are entitled to use paid leave for the following durations and reasons:
· Parental leave: Up to 12 weeks in a year for the birth, adoption, or placement of a child through foster care, as well as caring for the child during the first year after birth or placement.
· Family caregiver leave: Up to six weeks in any 24-month period to care for a family member (spouse, child, or parent) with a serious health condition.
· Medical leave: Up to six weeks in any 24-month period for the employee’s own serious health condition.
· Military family leave. Up to six weeks in any 24-month period because the employee has a qualifying exigency arising out of a family member’s deployment as a service member.
A covered individual is eligible for a maximum of 12 weeks of paid leave in a year.
Note: With notice to the Delaware Department of Labor and employees, an employer with fewer than 25 employees may elect to limit the exercise of parental leave during the first 5 years that benefits are payable (2026 to 2031). During that 5-year period, the employer may provide no less than half of the employee’s parental leave.
Employee Notice:
Employees must provide notice of their intent to use paid leave at least 30 days in advance when feasible. If advance notice isn’t feasible, the employee must provide notice as soon as practical.
Documentation and Certification:
Under the law, covered employers must collect and retain information verifying parental leave status, a serious health condition, or a qualifying exigency when an employee submits a request for such leave.
The employer must require that an employee support a request for leave based on a serious health condition with a certification issued by the employee’s or a family member’s healthcare provider In addition, the employer must require that an employee support a request for leave based on a serious health condition of a family member by documentation demonstrating the nature and extent of the relationship.
Processing Requests for Leave:
An employer must approve or deny an application for paid leave benefits under the law within five business days of receipt of a completed application that includes documentation necessary to review the claim. If the claim is denied, the employer must notify the covered individual of the reason for the denial. The employer must notify the Delaware Department of Labor within three business days of a claim being approved under the law.
Job Protection:
Upon returning from covered leave, the employee must be restored to the position held when the covered leave commenced, or to an equivalent position.
Continuation of Benefits:
During covered leave, the employer must maintain any healthcare benefits the employee had before taking the leave. The employee must continue to pay their share of the cost of their healthcare benefits, if any.
Employer Notice and Poster:
Employers must provide written notice about the law to each employee when they are hired and when they request covered leave. See the text of the law for details on what must be included in the notice. Employers must also display a poster in English, Spanish, and any other language that is the first language spoken by at least 5% of the employer’s workforce, if such a poster has been provided by the Department of Labor.
Contributions:
Contributions will begin on Jan. 1, 2025. For 2025 and 2026, the total contribution rate is 0.8 percent, with the breakdown as follows:
· 0.4 percent Medical Leave
· 0.08 percent Family Caregiver Leave
· 0.32 percent Parental Leave
For each component, employers may deduct up to 50 percent of the required contribution from each covered employee’s wages.
Private Plans:
Employers with comparable paid leave benefits (private plans) may apply to the Delaware Department of Labor to opt out of the program in whole or in part. See the text of the law for details on the requirements for private plans to be approved.
Next Steps:
· Review leave policies and update if necessary.
· Watch for the poster that must be displayed.
· Once published, provide the sample notice as required.
· Prepare to begin making contributions on January 1, 2025.
· Train supervisors how to handle leave requests.
· Begin providing leave for the covered reasons by January 1, 2026.