New Law Brings Paid Sick, Family Leave Requirements for Delaware Employers

Delaware lawmakers have approved a paid family leave requirement for employees in the Blue Hen State.

The Healthy Delaware Families Act provides 12 weeks of job-protected, paid medical and family leave for eligible workers. Qualified workers can begin taking leave in January 2026.

Democratic Gov. John Carney signed the bill on May 10.

“This legislation will build on the work we’ve done for state employees and extend paid leave into the private sector,” Carney said in a news statement.

Does my business have to comply with this law?

In general, larger businesses must comply.

Employers with 25 or more employees during the previous 12 months must comply with the medical leave, family caregiving, and parental requirements of the new law.

Employers with between 10 and 24 employees during the previous 12 months are subject only to the parental leave provisions of the law.

Those who do not have to comply, include:

• Employers with fewer than 10 employees in Delaware
• A business that is closed for at least 30 days in a row in a year
• The federal government

“Employer” means all those with workers anywhere in the state.

How long can employees take leave under this law?

In an application year, employees can take up to:

• 6 weeks of paid medical leave
• 6 weeks of paid family caregiver leave
• 12 weeks of paid parental leave

What is the leave eligibility?

Employees must work at least 1,250 hours for the employer during the previous 12 months to qualify for the benefit.

What are the reasons employees can take this leave?

Workers can take the leave for several reasons, including:

• The worker’s serious health condition
• The care of a family member with a serious health condition
• To bond and care for a new child
• A family member’s military deployment

How is “family member” defined under this state law?

“Family member” under the state law means a:

• Parent
• Child
• Spouse

How much can a worker get paid during leave?

In general, the minimum weekly benefit is $100. However, the worker’s weekly benefit will be the worker’s full weekly wage if the worker’s average weekly salary is less than $100.

In 2026 and 2027, the maximum weekly benefit will be $900.

In 2026 and 2027, the maximum weekly benefit will be $900. Starting in 2028 and in the years following, the maximum amount will increase based on the consumer price index, rounded to the nearest $5.

An employee cannot receive more than 100% of their weekly wage.

How will this benefit be funded?

The benefit will be funded through payroll contributions. Fund contributions must begin on January 1, 2025.

What are the employer contribution rates?

Employers can choose to make the entire contribution to the fund. Employers can also choose to deduct up to 50% of the required contribution from the employee’s paycheck.

Parental Leave: The contribution rate is 0.32% of wages for 2025 and 2026.

Family Caregiving Leave: The contribution rate is 0.08% of wages for 2025 and 2026.

Medical Leave: The contribution rate is 0.4% of wages for 2025 and 2026.

The employer must make contributions to the fund at the time wages are paid and must submit the total required contribution.

The employer is liable for the full amount of the required contribution if the employer fails to make the deduction when wages are paid.

Incremental and intermittent leave

Employees can take intermittent leave. The smallest allowable increment is 1 workday.

What are the employee notice guidelines?

When possible, an employee must provide the employer with at least 30 days advance notice of their need to be absent from work.

What are the job protection guidelines?

The leave is job-protected. A covered worker who takes Delaware paid family and medical leave must be reinstated to the same position the worker had when the leave began or be put into a job where the seniority, benefits, pay, and compensation, including fringe benefits, are equal to that which the employee had before going out on leave.

What are the healthcare benefits employers must maintain?

Employers must maintain the same healthcare benefits for the worker that the employee had before going out on leave. Covered employees must continue to pay their portion of the cost of their healthcare benefits.

What are the leave certification guidelines?

Employers can ask for medical certification when employees request leave because of a serious health condition.

Second medical opinion

Employers can request that a covered individual obtain a second medical opinion. The employer will have to pay the cost of the additional opinion.

Subsequent recertifications are allowed as long as the request is reasonable.

Employer deadline for approving/rejecting Delaware paid family and medical leave

Employers must approve or deny an application for benefits within 5 business days of receiving a completed application. If the claim is denied, the employer must explain the reason why the claim was refused.

Concurrent with FMLA

Leave under the Delaware law runs concurrently with leave taken under the federal Family and Medical Leave Act (FMLA).

What are the employer written notice requirements?

Employers must provide written notice to employees that includes an explanation of:

• The employee’s right to paid medical and family leave benefits
• The amount of leave that can be taken
• The procedure for filing a claim
• Job protection and benefits continuation under the law
• The discriminatory and retaliatory personnel actions against the employee that are prohibited under the law
• The employee’s right to file a complaint
• Whether medical and family leave benefits are available through the state or an employer’s private plan

Employers must provide the written notice 1) at hiring and 2) when the employee requests leave or 3) when the employer has reason to believe that an employee’s leave may be for an acceptable reason under the law.

What are the record keeping and posting requirements?

Employers must display and maintain a poster explaining the paid leave benefit in “a conspicuous place” at the employer’s place of business.

The poster must be in English, Spanish, and any other language that is spoken by at least 5% of the workers.

Employer offers same or better plan

Employers with a private plan that meets the substantive requirements of the paid leave benefit can ask for approval of their existing plan in lieu of complying with the state plan.

No retaliation

Employers cannot take adverse actions against employees who take advantage of leave.

What are the penalties for employers who fail to comply?

Employers who fail to comply with the paid leave requirement are subject to civil penalties ranging from $1,000 to $5,000 for each violation.

Employers who retaliate against employees for taking leave, filing a complaint, or participating in an investigation are subject to penalties ranging from $1,000 to $5,000.

Paid family leave in other states

Delaware is the 11th state with a paid family and medical leave law. Earlier this year, Maryland lawmakers approved a paid family leave law but the state’s legislature had to override the governor’s veto to make the popular benefit a requirement under state law.

Washington, D.C. also provides paid family and medical leave.

What are the legal recommendations for employers?

Legal experts have recommended that Delaware employers become familiar with the state-mandated benefit to ensure a smooth rollout when compliance becomes necessary.

Attorneys for law firm Littler Mendelson have also recommended in a blog post that employers with existing paid family and medical leave policies consider how their policy stacks up against the Delaware state-mandated requirement to determine whether offering a private plan is preferable to participating in the state plan.

It’s vital to keep up with family and medical leave laws

Family and medical leave laws are changing on a frequent basis. Some say the pandemic has sharpened the need for leave policies, especially paid leave. Municipalities and states have been especially active in approving and modifying family and medical leave for workers.

Zenefits offers software that can help employers, especially those with multiple locations, manage employee benefits and keep up with the new rules.