Delaware Becomes the Latest State to Enact a Paid Family and Medical Leave Law

On May 10, 2022, Delaware joined a growing number of states to enact a paid family and medical leave law. Entitled the Healthy Delaware Families Act, the new law establishes a Family Medical Leave Insurance Program which will be funded by employer and employee contributions starting January 1, 2025. Covered employees will be eligible to use up to 12 weeks of job-protected, paid family and medical leave starting on January 1, 2026.

Covered Reasons for Leave

The law allows eligible employees to take leave and submit a claim for benefits either to:

• (1) Attend to the employee's own serious health condition that makes the employee unable to perform the function of their position ("medical leave");
• (2) Care for a newborn child or child newly placed with the employee through adoption or foster care during the first year after the birth, adoption, or placement of the child ("parental leave");
• (3) Care for a family member—a parent, a child, or a spouse—with a serious health condition ("family caregiving leave"); or
• (4) Attend to an urgent need arising out of the deployment of a service member who is a family member of the employee ("qualifying exigency").

Covered Employers

Employers with 25 or more covered employees are required to provide medical leave, parental leave, family caregiving leave, and leave for a qualifying exigency. Employers with 10 to 24 covered employees are only required to provide parental leave. Employers with fewer than 10 covered employees are not covered by the law but may opt-in should they desire to provide parental leave benefits to covered employees.

The new law, however, will not apply to: (i) an employer who employs fewer than 10 employees in Delaware during the 12 months preceding the leave; (ii) the federal government; or (iii) any business that is closed in its entirety for 30 consecutive days or more per year.

Covered Employees

To be eligible to take paid family and medical leave, an employee must have been employed for at least 12 months and worked at least 1,250 hours during the previous 12-month period.

Amount of Leave

The amount of leave a covered employee is eligible for depends on the type of leave. Covered employees taking medical leave, family caregiving leave, or leave for a qualifying exigency are eligible for a maximum aggregate of six weeks of paid leave in any 24-month period. A covered employee taking parental leave is eligible for 12 weeks of paid leave.

In any application year, a covered employee is eligible for a maximum of 12 weeks of family and medical leave benefits.

Amount of Benefits

The maximum weekly benefit for 2026 and 2027 will be $900. If an employee makes more than $100 per week, then the employee is entitled to a weekly benefit of 80 percent of that employee's average weekly wages during the 12 months preceding the leave, subject to the $900 cap. If the employee makes less than $100 per week, then the weekly benefit must be the employee's full weekly wage.

Job Protections

Employers are required to restore covered employees, upon the expiration of covered leave, to the position the employee held before taking leave or to a position with equivalent seniority, status, benefits, pay, and other terms and conditions of employment. The Delaware law also makes it unlawful to discriminate or retaliate against an employee because they have applied for or taken leave or to interfere with or deny an employee's attempt to exercise their rights under the law.

Employer Notice Obligations

Employers are required to provide written notice to all employees of the following:

• The employee's right to family and medical leave benefits and its terms;
• The amount of family and medical leave benefits;
• The procedure for filing a claim for benefits;
• The right to job and benefits protection;
• That discrimination and retaliatory personnel actions against employees requesting, applying for, or taking family and medical leave is unlawful;
• The right to file a complaint for violations of the law; and
• Whether benefits are available to the employee through the state Family Medical Leave Insurance Program or through an approved private plan.

Employers must provide notice of the foregoing upon the hiring of an employee and also when an employee requests covered leave or when the employer acquires knowledge that an employee's leave is a covered reason for leave.

Additionally, employers will be required to display in a conspicuous place accessible to employees a poster containing these notices, which will be published by the Delaware Department of Labor (DDOL). The DDOL may also adopt regulations to establish additional requirements regarding employer notice obligations and the deadlines for employers to comply with those notice obligations.

Penalties and Damages for Violations

The law authorizes the DDOL to audit employers for compliance and to impose civil penalties ranging from $1,000 to $5,000 for each violation of the law. The law also provides employees the right to sue for damages for a violation of their rights under the law.

Potential damages can include lost wages and benefits or actual monetary loss (up to a sum equal to 12 weeks of wages and benefits), liquidated damages, and interest.

Private Plans

Employers may fulfill their obligations and opt out of the new law through a private plan that meets or exceeds the benefits provided to eligible employees under the state Family Medical Leave Insurance Program. Employers must, however, obtain approval of a private plan from the DDOL and must notify the DDOL by January 1, 2024, of their intention to seek approval.

Next Steps

Given that employer-employee contributions do not begin until January 1, 2025, and covered employees cannot begin taking paid leave until January 1, 2026, there are no immediate steps to take in response to the new Delaware law. However, employers should make it a priority to:

• Review current family and medical leave policies to determine whether any changes are needed in order to obtain approval from the DDOL of a qualifying private plan to opt out of the law.
• Inform and train management of the law's protections against interference with, discrimination of, and retaliation against employees taking covered leave.
• Follow developments and guidance from the DDOL.
• Be prepared to provide the required notice to employees.