Eligible Employees
Employees who work for any private employer with at least 50 workers for the last 20 weeks or more are covered by the FMLA. However, the employee requesting to use the FMLA or Family and Medical Leave Act must fall under all of these three categories:
1. The employee has been legally and officially employed in the company for at least 12 months;
2. The employee was able to work for at least 1,250 hours during the last 12 months; and,
3. 50 or more company employees are within a 75-mile radius of the location.
Part-time and full-time employees who have worked at least five hours per week for more than 12 months may use the FMLA leave.
Delaware Governor John Carney signed a law called the Healthy Delaware Families Act on May 10, 2022, and it shall take full effect in 2026.
This legislation provides eligible Delaware employees with paid family and medical leave for up to 12 weeks. It allows employees to address the same reasons or concerns under the FMLA while still receiving a percentage of their monthly wages.
The eligibility requirements of the Healthy Delaware Families Act are the same as the requirements of the FMLA.
Covered Employers
Unfortunately, there is no existing law in Delaware that requires private employers to provide their employees with paid or unpaid sick leaves. You can find details about the general provisions on wage payment and collection on the State’s official website.
A handful of companies provide paid and/or unpaid sick leaves to workers as an employment benefit. However, they are not in any obligation to do so. Nevertheless, their only obligation is to create a legal document that details the established policy should they want to grant their employees this benefit.
Additionally, the paid and/or unpaid sick leave should be reflected in the company’s handbooks and must be updated whenever necessary. They should also be able to provide the payment for the paid sick leave within 30 days after the leave was incurred.
Nonetheless, while there are no additional paid leaves for Delaware employees currently in effect, they can still exercise their rights to access the federal FMLA.
On the other hand, Delaware employers with at least ten workers must comply with the new Delaware Sick Leave Law. It is yet to take effect in 2026. However, the paid family and medical leave law does not include employers with less than 24 employees in the last 12 months. Nonetheless, they are still part of the parental leave provisions of the Senate Substitute 2 for Senate Bill 1.
Funding
The funds to be used for the paid family and medical leave law or the Healthy Delaware Families Act will come from a trust fund. These funds will then grow through payroll contributions, which means that the state will collect money from employers starting in 2025.
The payroll contribution is rated at 0.4% during the first two years. By 2026, employees will be eligible to access the benefits under the Delaware Sick Leave Law.
Sick and Safe Leave Accrual
In a 12-month period, employees who are in a serious health condition may take a maximum of 12 workweeks of leave under the FMLA law.
Employees who fall under any of the categories we’ve listed above are also guaranteed 12 workweeks of unpaid leave in a 12-month period.
On the other hand, the last two qualifications relate to military service. An employee is allowed to take up to 26 weeks of unpaid leave. However, this benefit is dependent on the injury and the entitlement of the military service member.
The employee may only take additional leave if the same family member suffers another injury while on active duty. However, if a different family member suffers an injury during active military duty, the employee may take the additional leave.
All of these leaves renew every 12 months of employment. An employee may take them again as long as they fall under the categories we’ve listed above.
Year Defined
The 12 months of the employment contract do not have to be consecutive. As long as the employee could complete a 12-month period of employment, they may use the leaves indicated in the Family and Medical Leave Act.
Permitted Uses
Eligible employees may exercise their right to access the FMLA if they plan to use the leave for any of the following qualifying reasons:
1. The employee needs to recover from a health condition.
2. The employee needs to take care of a family member suffering from a health condition.
3. The employee needs to spend time with their new child (birth, adoption, or foster placement).
4. The employee is to handle the qualifying needs of a family member rendering or coming out of military service.
5. The employee needs to care for a family member who suffered an injury while on active military deployment.
Serious Health Condition
An employee is only eligible to use the FMLA leave if they or a family member suffers from a serious health condition. A serious health condition may be identified using the following characteristics:
1. Medical care or treatment in a residential care facility, a hospice, or a hospital
2. A timeframe of more than three days prevents the person from going to work, school, or conducting physical activities. This timeframe should include a physician’s continuous care.
3. Any period that requires the employee to provide prenatal care
4. Incapacity because of pregnancy
5. Incapacity because of diabetes, asthma, epilepsy, or other health conditions
6. Chronic illnesses wherein treatment is ineffective, including stroke, Alzheimer’s disease, and other terminal illnesses.
7. Any form of treatment requires the employee to be away from work for more than three days if the patient does not receive medical care. Treatments include dialysis, physical therapy, and chemotherapy, among others.
It is important to note that the FMLA does not cover minor illnesses such as the common cold and other sicknesses. Nonetheless, if the patient suffers from an illness that incapacitates them for more than three days, the employee is eligible for the FMLA leave.
Under the Healthy Delaware Families Act, employees are entitled to a weekly benefit of 80% of their average weekly wages. This rule is also under the Senate Substitute 2 for Senate Bill 1. However, the weekly benefit should not be less than $100. Therefore, employees who average less than $100 in terms of weekly wage should get the full wage instead.
On the other hand, the maximum weekly benefit is capped at $900. This rate will increase annually after 2027, proportionate to the state’s Consumer Price Index.
Sick and Safe Leave Use Requirements and Limits
Employees who use the FMLA leave are allowed to continue their health insurance. Additionally, if the employer provides the employee with paid leaves, the employee may use these in coexistence with the FMLA leave. On the other hand, some companies require their employees to use their paid leave during their FMLA leave.
Alternative Eligible Leave Policies
The U.S. Department of Labor, along with the state of Delaware, holds the right to provide employees with leaves for other purposes. Such purposes include jury duty, bereavement, and voting.
However, employers are not under any legal obligation to compensate the employee for their time off for these leaves.
Additionally, bereavement leave is almost always only provided to the employee in the event of an immediate family member’s death.
Employee Notice of Use Requirements
If the employee needs to take the FMLA leave, they must immediately inform the company’s manager or HR department. The employee must then be provided with the company’s policy regarding the FMLA, allowing them to complete the necessary forms.
It’s important to note that employees and employers must process the necessary paperwork and/or documentation for the FMLA leave. Non-compliance may incur penalties and/or sanctions under federal laws.
Employer Notice Requirements
Under the Healthy Delaware Families Act, the employer must provide a written notice to its employers through the following methods:
1. The employer must provide an employment law posting regarding the bill to keep the employees informed about their rights.
2. The employment law policies must also be posted in Spanish if at least five percent of the workforce speak it as their primary language.
Discrimination and Retaliation
At the end of the leave, employees are also entitled to reinstatement to their position before taking the FMLA leave. An exemption is when there are significant changes in the employee and the company.
An example is if the employee took the FMLA leave because of an illness, which rendered them incapable of completing tasks necessary for their job. They must instead be reinstated to an equivalent position.
Additionally, if the company’s structural changes dissolved the employee’s job description, they must also be reinstated to an equivalent position.
Filing a Complaint, Complaint Procedure, and Penalties
There are also provisions under the Delaware Sick Leave Law pertaining to filing complaints. Under the Healthy Delaware Families Act, compliance for employers is a must. An employer must provide restitution to the employee if the eligible employee is denied the paid sick leave.
