On May 10, 2022, Governor John Carney signed the “Healthy Delaware Families Act” (“the Act”) into law, making Delaware the eleventh state to offer paid family leave in the country.
To be eligible for, and receive benefits from the program, employees must have been employed for at least 12 months by the employer from whom leave is being requested and have worked a minimum of 1,250 hours over the 12-month period prior to requesting benefits.
The employee must also primarily work at a site located in Delaware. If the employee reports to work at a location outside of Delaware, the employer has discretion to classify that employee as eligible for participation in the state’s leave program. Employees employed by the state whose work is classified as “Casual Seasonal” are ineligible to participate in the program.
Employees may be eligible for paid family leave for the following reasons:
The program will pay 80% of the covered individual’s average weekly wages during the 12-month period prior to their application. For 2026 and 2027, the benefit payments will be capped at a maximum of $900 per week and indexed for inflation thereafter. The minimum weekly benefit cannot be less than $100, unless the employee’s average weekly wages are less than $100 per week. In those instances, the employee’s benefit will be their full weekly wage.
If the leave is intermittent or partial, benefits will be prorated but are not payable if less than one workday of covered leave is taken by the employee.
Benefits for eligible employees under the Act are capped as follows:
If two parents are entitled to leave and work for the same employer, the employer is allowed to aggregate the number of weeks of leave to which they are both entitled to a total of 12 weeks during a 12-month period.
For 2025 and 2026, the contribution rates as a percentage of an employee’s wages will be as follows:
An employer may deduct from the wages of each employee up to 50% of the contribution required, however, the employer at its own election can pay some or all of the employee’s share of the contribution. Beginning in 2027, the contribution rates will be adjusted annually.
Employees who apply for benefits must provide written certification which includes the following information:
If the employer already has a paid leave program that provides medical, family caregiving and parental leave benefits, and that program is subsequently approved by the state, the employer will not have to remit contributions to fund the state’s leave program. Employers must submit applications for approval to the state by January 1, 2024. To be approved, the employer’s leave program must meet the Act’s requirements and cannot impose additional conditions or restrictions beyond those permitted by the law.
If the employer’s private plan does not cover all three leave types (for example, the policy only covers medical leave), the employer is permitted to participate in the state’s paid leave program by remitting contributions for those leave benefits not covered by their private plan.
If the need for use of leave is foreseeable, an employer may require the employee to give at least 30 days’ written notice before taking leave. If the leave is unforeseeable, notice to the employer from the employee will be due as soon as practicable.
Leave covered by this Act may also qualify as leave under the FMLA and must run concurrently with FMLA leave. Employers are permitted to require that payments made under this leave program are coordinated with payments made to the employee under a separate leave policy (e.g., employer’s private plan or a collective bargaining agreement). Employers can require employees to use their unused paid time off before they can take leave covered by this Act. However, eligible employees cannot collect more than 100% of their regular wages from leave programs.
An employer must provide written notice to each employee of their rights under this Act at the time of the employee’s hire, whenever an employee requests covered leave, or the employer has reason to believe an employee’s leave is due to a qualifying event.
The notice must contain:
An employer must:
If the employee is entitled to greater benefits under a collective bargaining agreement or prior employer policy, the employer is obligated to follow those policies and cannot utilize the Act as a reason to reduce
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