Delaware Enacted Paid Family and Medical Leave Law

 

On May 10, 2022, Gov. John Carney signed into law the Family and Medical Leave Insurance (FMLI) program called the “Healthy Delaware Families Act.” The payroll withholding of the employees’ contributions is scheduled to begin on January 1, 2025, and the benefits will be available to eligible employees starting January 1, 2026.

There are several key differences from other states’ PFML programs. For example, the minimum employer size that needs to comply with the Delaware FMLI program is an employer who employs 10 or more employees working in Delaware, in contrast to employers with at least one employee working in the state for other states’ PFML programs. Moreover, the Delaware FMLI program allows employers to include their employees who work outside of Delaware to participate in Delaware’s FMLI program voluntarily. Another major difference is employers, rather than the state, are responsible for approving or denying a claim application within five business days of receipt of a completed application with the required documentation. Once approved, the state’s Department of Labor will make the benefits payment to the eligible employees.

Overall, Delaware aligns many of the program’s details and terms with the federal FMLA, such as the definitions of the family members. Therefore, the eligible family members under the FMLI program are much narrower than other states’ PFML programs.

Below are the key highlights of the Delaware FMLI program:

Timeline

• January 1, 2025: Contributions to Family and Medical Leave Insurance Fund begin
• January 1, 2026: Benefits will be available to employees

Covered Employers

 

• Employers with 10-24 covered employees during the previous 12 months must comply with the parental leave requirements only. Covered employees are those who primarily report to work at a Delaware worksite unless otherwise excluded. However, employers can reclassify an employee as a covered employee even when the EE works at a worksite in another state.
• Employers with 25+ covered employees must comply with all the parental, family caregiving and medical leave requirements.

Funding of the Program

 

Employers can require covered employees to pay up to 50% of the total premium. Employers are responsible for the remaining premium amount. The contribution amounts in 2025 and 2026 are:

• Parental leave: 0.32% of employee’s wages
• Family caregiving leave: 0.08% of employee’s wages
• Medical leave: 0.4% of employee’s wages

Employers are required to remit the total premium to the state at least quarterly as regulated by the department.

 

Eligibility to Take Leave

Covered employees are eligible when they have worked at least 1,250 hours over the 12-month period immediately preceding the date on which leave is to begin.

Qualified Reasons for Leave

• EE’s own serious health condition (medical leave)
• For an eligible EE to:
  • Care for a family member with a serious health condition (family leave)
  • Bond with a new child (by birth, adoption or fostering) during the first 12 months after the child’s birth or placement (parental leave)
  • Attend to a qualifying exigency arising out of a family member’s military deployment (family leave)

Maximum Benefits Duration

 

• Aggregate of all combined leave: 12 weeks total in an application year
• Parental leave: 12 weeks in an application year
• Total family caregiver leave and medical leave: 6 weeks in 24-month period
• Leave can be taken continuously or intermittently or reduced schedule basis only when medically necessary.

Maximum Benefits Amount

 

Covered employees are entitled to 80% of their average weekly wage up to $900 in 2026 and 2027. (After 2027, revisited annually and adjusted by the state as appropriate.)

Next Steps

Because the contributions do not begin until 2025, and the benefits will be available to eligible employees in 2026, employers have time to review the law closely against their existing leave policies and benefits eligibility, and consider how the new Delaware FMLI will coordinate with other leaves including the federal FMLA and STD. Moreover, employers should monitor any future guidance and developments as it is expected that the state will release more detailed guidance.

Healthy Delaware Families Act »