Delaware Paid Leave - Legislative Guidance

Table of Contents

Overview

Delaware Paid Leave (DEPL) offers eligible employees partial wage replacement benefits and job-protection. The size of the employer determines the amount of entitlement an employee may receive.

DEPL can be taken to care for a serious health condition of the employee or family member, qualifying exigency matters, or to bond with a newborn or newly placed child.

DEPL is a state-administered program that is funded through a combination of employer and employee contributions. While almost all Delaware employers must participate in the program, they have the option to offer an equivalent plan. Equivalent plans must provide equal or greater benefits than the state program and must be approved by the Delaware Department of Labor (DEDOL).

Delaware is unique in the employer is required to review the employee’s claim to the state, ensure all necessary documentation is complete and returned, and notifies the Division when a recertification is being requested from the employee. The state will be the one who pays benefits, and will send out an advisory notice to the employee on the status of the claim, if the employer is using the public plan. This method does put more administration on the employer to properly notify the state of the decision and provide all the documentation to support the decision.

AbsenceSoft Policies

Delaware Paid Leave is configured in AbsenceSoft with two policies to track eligibility for job protection and approval for state administered wage replacement the policy codes and naming are listed below:

• Delaware Paid Leave Job Protection - DE-PL-JP

• Delaware Paid Leave - DE-PL

Legislation codes and statues

The information presented in the guidance relates to the following legislative codes, links to the specific legislation can be found within the ‘Resources’ section of this document. This law is also known as Delaware Healthy Families Act:

• Delaware Code Annotated title 19, chapter 37, subsection 3701-37204 (Del. Code Ann. tit. 19, §3701-37204)

• Delaware Administrative Code title 19, §1401-1.0 (Del Adm. Code §1401-4.2.2)

Employer Coverage

• Employers with 10 to 24 employees in the previous 12 months are subject to the ‘parental’ or bonding reasons an employee may need leave.

• Employers with 25 or more employees are subject to all qualifying reasons for leave.

Coverage thresholds are determined based on quarterly wage reports submitted to the state. Once the threshold is met, it remains in place for 52 consecutive weeks.

Employees must be working anywhere in the state of Delaware.

Exclusions:

• Federal government employees

• Tribal governments

• Employers with fewer than 10 employees

• Employers that operate seasonal businesses and are shut down for 30 or more consecutive days per year

Employee Eligibility

An employee is considered eligible if they meet the requirements noted below:

• 12 months of service which need not be consecutive and may use a 7 year lookback period.

• Worked at least 1250 hours during the previous 12-month period. Hours worked is time actually worked and not any sick, vacation or personal time taken.

• Work in the state of Delaware for at least 60% of the wages earned.

Exclusions:

• State employees

• Employees working outside of Delaware or in a worksite that is outside of Delaware unless the employer agrees to reclassify them

• Independent contractors (may opt-in)

Qualifying Absence Reasons and Leave Duration

DEPFML’s application year is on a rolling forward 12-month measurement period.

The amount of leave entitlement varies based on the type of leave being taken, and in some circumstances the size of the employer.

An employee is eligible for 12 weeks of parental leave in a 12-month period, and 6 weeks of leave for all other reasons in a rolling forward 24-month period.

The maximum amount of leave an employee can take in any application year between parental and any other qualifying reason is 12 weeks of leave.

Family Leave

• Adoption/Foster Care: Care for and bond with a child within the first year after placement through adoption or foster care.

• Bonding: Care for and bond with a new child within the first year after birth.

• Family Health Condition: Care for a family member with a serious health condition. If while the employee is on leave caring for a family member and the family member dies, payable benefits will continue for up to 7 days following the death. This time is still considered job protected leave.

Medical Care

• Employee Health Condition: Care for the employee’s own serious health condition.

• Pregnancy/Maternity: Pregnancy disability, prenatal care, and/or pregnancy complications.

Military

• Qualifying Exigency: Employee is attending to matters resulting from the service member’s active duty deployment in a federal branch of the U.S. Military. Factors include financial, legal or childcare planning, counseling services, military events/ceremonies, visitation during rest and recuperation, or addressing items related to the servicemember’s parent. Rest and recuperation leaves are limited to 15 calendar days ,and short-notice deployments are limited to 7 calendar days.

Qualifying Family Member

• Parent (stepparent, in loco parentis relationship when child was younger, adoptive/foster parent)

• Spouse

• Child under the age of 18 unless significant impairment, or child of any age for exigency reasons (stepchild, adopted/foster child, in loco parentis)

How Leave Can be Taken

Employees may take leave consecutively, intermittently, or reduced schedule for any qualifying reason.

• Consecutive leave: A continuous, uninterrupted period of leave taken for a single qualifying reason.

• Intermittent leave: Leave taken in separate, sometimes unpredictable, blocks of time (either hours, days or weeks) between the start and end dates of leave. Employer may allow intermittent for parental leave purposes but not required.¹

• Reduced schedule: A reduction to the employees’ work schedule that results in either fewer hours per day or fewer days per week. A reduced schedule is consistent from one week to the next.

Certification Requirements

Certification forms are supplied by the DEDOL through the claim portal and will be distributed to the appropriate parties when the claim is started.

The employee must return and is ultimately responsible for ensuring the return of the requested documentation within 20 calendar days. After 30 days with no documentation, the claim is automatically denied within the claim portal but can be reopened within 60 days if the denial is due to lack of documentation.

Employers must render a decision on the request within 5 business days following the completion and return of documentation, the decision must be communicated to the employee within 3 business days after the determination. Recertification needs must be done directly through the portal from the employer.

The certification must include the following to be deemed as sufficient:

• Commencement date of the serious health condition

• Duration of condition or estimated duration

• Medical facts pertaining to the specific condition or reason for leave

• For employee’s own serious health condition:

  • Statement the employee is unable to perform the job functions

  • Intermittent or reduced schedule reasons require planned treatment or appointments and how long treatment or appointments take in each circumstance.

• For care of a family member:

  • Statement the family member needs the employee to assist in care and how long the employee is needed to care for their family member.

  • Necessity of the employee to participate in the intermittent or reduced schedule and duration and anticipated schedule.

Employers may request second opinions when the validity of the certification is doubted. Second opinions are at the expense of the employer, and the healthcare provider the employer chooses, must not be employed by the employer. Third opinions are allowed and are binding. Third opinions are at the expense of the employer and the healthcare provider must be agreed upon by both the employer and the employee.

Recertifications are also permissible on a reasonable basis following either the guidance of any collective bargaining agreement or not more frequent than once every 30-day period. Employers are required to pay for recertifications if a visit to the healthcare provider is not covered by the employee’s health insurance.

Recertifications for intermittent or reduced schedules are allowed every 90 days and do not need a reason to establish the need for recertification. ²

An employer may require an employee to supply written information indicating the employee is able to return to work, so long as the employer uniformly applies this to employee’s who take medical leave. Employers can not request second opinions on the return to work documentation.

Pay and Benefits

Where state pay benefits are involved with other law interactions, such as state mandated sick pay, employers will want to consider where PTO/employer pay benefit application, and any other state mandated paid leave programs such as Paid Sick Leave, should occur. There are no waiting periods for DEPL.

Amount of Pay

DEPL pays a weekly benefit amount that is determined by comparing the employee’s average weekly wage to the state’s average weekly wage. Benefits are calculated on a sliding scale, with lower-income employees generally receiving more of their usual wages compared to higher-income employees. Minimum and maximum weekly benefit amounts are based on the state average weekly wage. The wages subject to benefit payment must be from wages received in Delaware.

Employer sponsored benefits (disability, paid medical leave)may count against an employee’s DEPL usage, if disclosed in writing to all employees.

Use of Paid Time Off (PTO)

Employees may choose to use any accrued employer benefits such as PTO, vacation, sick or personal time.

Employees and employers may also agree to the use of PTO to supplement DEPL payments up to 100% of the employee’s wages so long as there is a written agreement signed and given to the employee.

Job Protection

An employee must be returned to the same or equivalent position. Equivalent means the same seniority, responsibilities, compensation, benefits, terms, location, and conditions of the position left.

Employees that have been replaced or their job restructured are still entitled to reinstatement.

Exclusions from reinstatement:

• Leave extends beyond what is offered under the DEPL, employer policy or other state or federal law;

• Downsizing or reorganization of position should be treated the same as employees who were not on leave;

• Employee is not able to perform the job functions and may then require accommodations under the ADA; or

• Fraudulent application or certification submitted by the employee.

Other Protections

Employees are protected from retaliation for exercising or invoking their rights under DEPL.

Benefits

Employers should maintain benefits in the same manner as if the employee is not out on leave. An employer may terminate coverage for non-payment for the employee’s portion of benefits, however, upon return to work, the employee’s benefits must be reinstated in the same manner as if the employee had not been on leave. Employers choosing to terminate benefits must not subject an employee to any new waiting periods, medical examination, or make the employee wait for reinstatement until an open enrollment period.

If an employer pays the employee portion while on leave, the employee can be subjected to recoupment of such payments made on their behalf, including if the employee fails to return to work, legal means can be used to recoup payments.

Interaction with Other Laws

Where an employee meets the definition of family member, qualifying absence reason, or serious health condition, the state and federal laws may interact. Accommodations that are not leave related, would not run concurrently with other state or federal leave laws.  

Family and Medical Leave Act (FMLA)

FMLA may run concurrently with DEPL.

Delaware Pregnancy Disability Leave (DEPDL)

DEPDL may run concurrently with DEPL in certain circumstances.

Delaware Victims of Domestic Abuse, Sexual Assault and Related Crimes (DEDOM)

DEDOM requires employers to provide reasonable accommodations for employees who are victims of domestic violence/abuse, stalking or sexual offense. DEPL may run at the same time depending on the situation.

Workers’ Compensation

An employee receiving disability benefits is not entitled to benefits under DEPL.

Unemployment

An employee receiving unemployment benefits is not entitled to benefits under DEPL.

Employee and Employer Responsibilities

Employee Responsibilities

• Notify employer:

  • at least 30 days in advance when leave is foreseeable,

  • if not foreseeable due to emergency, change in circumstance, or leave dates were unknown, employees should notify as soon as practicable

  • if the leave event is known but is less than 30 days advance notice, the employee should notify the employer the same or next business day

  • intermittent or reduced schedules for unplanned absences should be communicated as soon as practicable and for scheduled items with as much notice as possible;

• Submit and return certification and other documentation requirements of the DEPL application within appropriate timeframes;

• Employees may submit a review of their claim within 60 days following a claim decision and must do so directly with the DEDOL; and

• Follow employer policies and procedures for time off reporting.

Employer Responsibilities

• The DEDOL will provide a poster which must be placed in an are that is conspicuous/frequented by employees, or can be disbursed electronically through a company or personal email address of the employee.

  • Written documentation must also be provided at the time of hire, when an employee requests leave, and when the employer is made aware of an event that may qualify for DEPL.

• The employer must notify the employee within 30 days, if the number of employees required for employer coverage reaches amounts that subject the employer to the provisions of this law, or decreases and the employer is no longer a covered employer.

• Determine any employees that qualify for waivers.

• For employers with 10 to 24 employees, those employees that are currently on leave and the employee threshold falls must continue to provide benefits until the leave ends or expires.

• Register for DEPL;

• Report employee wages and employee counts;

• Withhold and send employee contributions;

• Determine reclassification of employees who may work outside of Delaware;

• Maintain payroll records;

• Decide on PTO or other employer sponsored benefit program usage and meet all employee notification requirements

• Respond to the claims within 5 business days from receipt of sufficient documentation and communicate the decision of the claim to the employee within 3 business days of such decision.

Resources

Delaware Paid Leave website: https://labor.delaware.gov/delaware-paid-leave-is-coming/

Delaware Legislation: https://legis.delaware.gov/SessionLaws/Chapter?id=41906

and

https://regulations.delaware.gov/AdminCode/title19/1000/1400/1401.shtml#TopOfPage

¹ Del. Admin. Code §1401-7.2

² Del. Admin. Code §1401-7.1