Delaware becomes the 11^th state to enact a paid family and medical leave law. The paid leave law provides up to 12 weeks of leave for certain parental, family caregiving, and medical reasons. The program will be funded by employer and employee contributions, with contributions beginning January 1, 2025, and paid leave benefits beginning January 1, 2026.

Employers subject to law

An employer employing 10 or more employees working anywhere in the State is subject to the law. Employer does not include the federal government or any business that is closed in its entirety for 30 consecutive days or more per year. A small employer (under 10 employees) can opt into the program.

Employers with 10 to 24 employees must comply with the law’s parental leave requirements only; employers with 25 or more employees are subject to the parental, family caregiving, and medical leave requirements as more fully described below.

In determining employer size, employers count covered employees and those employees the employer reasonably expects to meet coverage requirements during the previous 12 months.

Covered employee

Employee means an individual employed by an employer. To be eligible for paid leave benefits, an individual must be a covered employee defined as one who has been employed for at least 12 months by the employer and has been employed for at least 1, 250 hours of service with the employer during the previous 12-month period.

Amount and reasons for leave

Beginning January 1, 2026, a covered employee is eligible for up to 12 weeks of paid parental leave, 6 weeks of paid family caregiver leave, or 6 weeks of paid medical leave in an application year. Employees are limited to a maximum of 12 weeks of paid family and medical leave benefits in an application year and a maximum of 6 weeks of medical and/or family caregiving leave in any 24-month period.

If two parents employed by the same employer are entitled to parental or family caregiver leave, the employer may limit aggregate number of weeks of leave to which both may be entitled to 12 weeks during any 12-month period.

Application year means the 12–month period as defined in the FMLA.

Parental leave can be used for the birth, adoption, placement through foster care, or care for a child during the first year after the child’s birth, adoption, or placement. Family caregiver leave can be used for care for a family member with a serious health condition or for a qualifying military exigency. Medical leave can be used for an employee’s serious health condition that makes the employee unable to perform the functions of his/her position.

A family member includes a child, parent or spouse as defined by the FMLA.

Leave benefits can be taken on an intermittent or reduced schedule basis, but only when medically necessary and supported by documentation.

Benefit amount

Beginning January 1, 2026, a partial wage replacement benefit payable to a covered employee will be up to 80% of the employee’s average weekly wages, with a maximum weekly benefit amount of $900 for 2026 and 2027.Starting in 2028, the maximum weekly benefit will increase based on consumer price index changes.

Job protection

An employer must reinstate a covered employee to his/her former position upon return from leave. An employer must also maintain any health benefits the employee had before taking the leave for the duration of leave. An employee shall continue to pay the employee’s share of the cost of health benefits.

Funding

Beginning January 1, 2025, employers must remit employer and employee contributions to the Family and Medical Leave Insurance Account Fund. The employee can be required to pay up to 50% of the required contribution with the employer paying the balance. An employer can chose to pay a greater share of this required amount.

For 2025 and 2026, contributions will equal 0.8% of wages broken down as follows:

• .32% for parental leave;
• .4% for medical leave; and
• .08% for family caregiver leave.

Beginning in 2027, the contribution rate will adjust based on consumer price index changes.

Employer notice

Upon hiring an employee, when an employee requests leave, or when an employer knows that an employee’s leave may be for a qualifying event, an employer must provide notice of:

• The employee’s right to PFML benefits and the terms under which it may be used.
• The amount of PFML benefits.
• The procedure for filing a PFML claim.
• The right to job protection and benefits continuation.
• That discrimination and retaliation for requesting, applying for, or using PFML benefits is prohibited.
• That the employee has a right to file a complaint for violations.
• Whether PFML benefits are available to the employee through the state or an approved private plan.

An employer must conspicuously display and maintain a poster at its place of business that contains the same information in English, Spanish, and any language that is the first language spoken by at least five percent of the employer’s workforce.

Employee notice

An employee must provide notice of his/her intent to take leave 30 days in advance, if known, or as soon as practicable.

Private plan

An employer may apply to the Delaware Department of Labor to provide any or all parts of this law through the use of a private plan that meets all of the requirements of the law. If the private plan is in the form of self-insurance, the employer must furnish a bond running to the State, with a surety company authorized to transact business in this State.

Coordination with other leave laws

Leave provided under this law runs concurrently with available FMLA.

The information contained in this Benefit Beat is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations. This information is provided as general guidance and may be affected by changes in law or regulation. This information is not intended to replace or substitute for accounting or other professional advice. You must consult your own attorney or tax advisor for assistance in specific situations. This information is provided as-is, with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.