Delaware Requiring Paid Family and Medical Leave by 2026

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On May 10, 2022, Governor Carney signed the Healthy Delaware Families Act (“HDFA)” making Delaware the eleventh state that will require employers to provide paid family and medical leave.  While the law will take effect on July 1, 2022, employers will not be required to provide the paid leave until January 1, 2026.  Nevertheless, employers should consider planning ahead now.

Eligibility for Paid Leave in Delaware      

The HDFA will require employers to provide employees who primarily report to a worksite in Delaware with a maximum of six weeks paid medical leave and/or family caregiving leave within any 24 month period and a maximum of 12 weeks per application year of paid parental leave, with a cap of 12 weeks paid leave per application year. To be eligible for the paid leave, the employee must have worked for the employer for at least 12 months and for a minimum of 1,250 hours within the previous 12 month period.

Requirements Differ per Number of Employees  
  • Employers with 25 or more employees working in Delaware during the previous 12 months will be required to provide the paid parental leave, personal medical leave and family caregiving leave.
  • Employers with 10 to 24 employees working in Delaware during the previous 12 months will only be required to provide the paid parental leave. 
Payment Amounts and Funding

The leave must be paid at 80% of the employee’s average weekly wages with an initial maximum weekly benefit of $900 per week.  The leave will be funded by a payroll tax on employers initially set at 0.8% beginning on January 1, 2025. Employers may elect to deduct up to 50% of the tax from their Delaware employees’ wages.

Includes Anti-Retaliation, Non-Interference and Non-Waiver Provisions        

The HDFA also includes anti-retaliation and non-interference provisions and provides for a private civil cause of action to enforce these sections.  In addition, the HDFA provides that employees may not waive their rights to agree to benefits less than those the HDFA provides via a collective bargaining agreement or otherwise.

May Use Own Plan If Approved by Delaware Department of Labor    

Employers with a private paid leave plan at least as generous as the public plan may use their own plan instead of the state funded plan if the employer’s plan is approved by the Delaware Department of Labor.  Employers must submit their requests for approval before January 1, 2024.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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