Delaware — Leave Laws

Delaware's Healthy Delaware Families Act, codified at 19 Del. C. Ch. 37, establishes a state-run Family and Medical Leave Insurance Program providing paid leave benefits to eligible employees. The program covers parental leave (birth, adoption, or foster placement), family caregiving leave (caring for a family member with a serious health condition), medical leave (employee's own serious health condition), and qualifying exigency leave (military deployment-related needs). Benefits became available January 1, 2026, following a contribution period that began January 1, 2025.

Source: 19 Del. C. Ch. 37

Under 19 Del. C. § 3704(a)(1), the weekly benefit is 80% of the covered individual's average weekly wages during the 12 months preceding submission of the application, rounded up to the nearest even dollar. The minimum weekly benefit is $100, except that if the covered individual's average weekly wage is less than $100, the weekly benefit must be the individual's full wage (§ 3704(a)(2)). The maximum weekly benefit is $900 for 2026 and 2027; in each year after 2027, the maximum increases in proportion to the annual average increase in the Philadelphia-Camden-Wilmington Consumer Price Index, measured from October 2026 to the October before the start of the calendar year (§ 3704(a)(3)).

An eligible individual may receive up to 12 weeks of parental leave benefits in an application year (§ 3703(a)(1)). The maximum aggregate for medical leave and family caregiving leave combined is 6 weeks in any 24-month period (§ 3703(a)(2)). Total family and medical leave benefits in any application year are capped at 12 weeks (§ 3703(a)).

Source: 19 Del. C. §§ 3703, 3704

To qualify as a "covered individual" eligible for Delaware paid family and medical leave benefits, an employee must satisfy both a tenure requirement and an hours-worked threshold with respect to the employer from whom leave is requested. Under 19 Del. C. § 3701(3), a covered individual is defined as someone who:

1. Has been employed for at least 12 months by the employer with respect to whom leave is requested, and
2. Has been employed for at least 1,250 hours of service with that employer during the previous 12-month period.

These requirements mirror the federal Family and Medical Leave Act (FMLA) eligibility standards. The statute expressly provides that in determining whether an individual meets the 1,250-hour service requirement, "the legal standards established under the FMLA apply." This means only actual hours worked count toward the 1,250-hour threshold—paid time off, vacation, and sick leave hours are excluded from the calculation.

How the requirements are measured: tenure vs. hours

The Delaware Administrative Code clarifies how these two requirements operate. Under 19 Del. Admin. Code § 1401-1.0, a "covered individual" is defined as an individual employed for at least 1,250 hours of service performed within the territory of Delaware with the employer "during the previous 52-week or 12-month period" and who "has worked for that employer for a period of at least 52 weeks or 12 months." The regulation expressly states that "the minimum 52-week or 12-month period of employment requirement does not have to be consecutive" (subject to a 7-year break exception: if a break in service has lasted more than 7 years, the period of employment prior to the 7-year break is not counted).

The 12-month tenure requirement is one-and-done. Because the regulation states the 12-month employment period "does not have to be consecutive," once an employee has accumulated 12 months of tenure with an employer (barring a break in service exceeding 7 years), that tenure requirement is satisfied for the duration of their employment with that employer. The state does not require a fresh 12-month waiting period if the employee later takes leave and returns to work.

The 1,250-hour requirement is a rolling lookback. The regulation's language—"during the previous 52-week or 12-month period"—makes clear that the 1,250-hour threshold is continuously re-measured against the most recent 12-month period. An employee who falls below 1,250 hours in the lookback period loses eligibility for benefits, even if they continue to pay contributions, until they again accumulate 1,250 hours in a 12-month span. For purposes of the employer threshold count (determining whether the employer must provide coverage), 19 Del. Admin. Code § 1401-3.2 provides that employees subject to the Act are "those who meet or are reasonably expected to meet the requirements of a covered individual," namely the 12-month tenure and the 1,250 hours during the previous 12-month period.

Application and administrative requirements

The statute also requires that the individual submit an application under Chapter 37 and meet the administrative requirements prescribed by the Division of Paid Leave (19 Del. C. § 3701(3)(c)–(d)).

Geographic scope

Under 19 Del. C. § 3701(6)(a), "employee" means an individual employed by an employer, and individuals primarily reporting for work at a worksite in Delaware are employees unless otherwise excluded. The December 11, 2025 regulation amendment defines "primarily" as working at least 60% of an employee's work hours physically in Delaware each calendar quarter (19 Del. Admin. Code § 1401-1.0). Employees who primarily report for work at a worksite outside Delaware are not considered employees under the PFML program unless the employer and employee elect in writing to reclassify them as such (a "reclassification").

Excluded categories

Federal government workers, railroad workers subject to the Railroad Unemployment Insurance Act, employees of tribal governments, and Delaware state employees in casual/seasonal positions covered under 29 Del. C. § 5903(17)(a) are not "employees" for purposes of the PFML program.

Source: 19 Del. C. § 3701 Source: 19 Del. Admin. Code § 1401-1.0 (Definitions) Source: 19 Del. Admin. Code § 1401-3.2 (Threshold count)

Delaware's paid family and medical leave insurance program imposes different coverage obligations depending on employer size, measured by employee count. The statute and regulations create three tiers:

Employers with fewer than 10 employees are not subject to any mandatory coverage requirements under the Act, though they may voluntarily opt in to any line of coverage (19 Del. C. § 3701(23)(a); 19 Del. Admin. Code § 1401-3.3).

Employers with 10–24 employees must provide parental leave benefits only (19 Del. C. § 3701(7)(a)(1); § 1401-3.4). Parental leave covers leave for the birth, adoption, or foster placement of a child during the first year (19 Del. C. § 3702(a)(1)). Employers in this size bracket are not required to provide medical leave, family caregiving leave, or qualifying exigency leave, though they may voluntarily elect to provide those additional lines of coverage (§ 1401-3.4.4).

Employers with 25 or more employees must provide all lines of coverage: parental leave, family caregiving leave (caring for a family member with a serious health condition), medical leave (employee's own serious health condition), and qualifying exigency leave (military deployment-related needs) (19 Del. C. § 3701(7)(a)(2); § 1401-3.5).

Counting employees for threshold purposes

An employer determines its employee count at the beginning of each quarter based on employees who meet—or are reasonably expected to meet—the individual eligibility requirements of 12 months' tenure and 1,250 hours worked in the previous 12 months (19 Del. C. § 3701(7)(a)(2); § 1401-3.2). Employees who work at least 60% of their hours in Delaware are included (as amended by regulation effective December 11, 2025). Employees who have signed a waiver (because they are temporary or work fewer than 25 hours per week) are excluded from the count, while employees who have been reclassified (working physically out-of-state but voluntarily covered) are included (§ 1401-3.2.2).

Threshold mechanics: easy to gain, difficult to lose (52-week rule)

Coverage obligations are designed to be "easy to gain and difficult to lose." When an employer crosses a threshold upward, the new coverage takes effect within five weeks (to allow for employee notice), and the employer must maintain that coverage for at least 52 consecutive weeks even if the employee count subsequently drops below the threshold (§ 1401-3.4.1, 3.5.1).

Gaining parental-leave coverage (10+ employees). Once an employer reaches 10 or more employees, it must provide parental leave coverage for at least the next 52 weeks. Coverage becomes effective no later than five weeks after the threshold count rose to 10 or more (§ 1401-3.4.1).

Losing parental-leave coverage (below 10 employees). If the employer's count drops below 10 employees and remains below 10 for 52 consecutive weeks, the employer is no longer required to provide parental leave coverage, effective the next pay period after the 52nd consecutive week (§ 1401-3.4.2). If the count rises back to 10+ before 52 weeks elapse, the 52-week clock resets, and the employer continues to be obligated.

Gaining full coverage (25+ employees). When an employer reaches 25 or more employees, it must provide all lines of coverage (parental, medical, family caregiving, and qualifying exigency) for at least the next 52 consecutive weeks. Coverage is effective no later than five weeks after crossing the threshold (§ 1401-3.5, 3.5.2).

Losing medical/caregiving/exigency coverage (below 25 employees). If the employer's count falls below 25 employees and remains below 25 for 52 consecutive weeks, the employer is no longer required to offer medical leave, family caregiving leave, or qualifying exigency leave, effective the next pay period after the 52nd consecutive week (§ 1401-3.5.1). The employer remains subject to the parental-leave requirement so long as it has at least 10 employees. Employers must provide employees with 30 days' notice before terminating any line of coverage (§ 1401-3.5.1).

Employees on approved leave. If an employee is already on an approved leave when the employer's threshold count drops and the employer's obligation to provide that line of coverage eventually ends (after 52 weeks below the threshold), the employee's approved leave continues uninterrupted (§ 1401-3.4.5).

Voluntary enrollment for smaller employers

Employers with fewer than 10 employees may voluntarily opt in to provide parental leave benefits (and other lines) by providing notice to the Department. After opting in, the employer must remain opted in for at least three years and may opt out only with 12 months' notice to employees and the Department (19 Del. C. § 3708). Employers with 10–24 employees may voluntarily elect to provide the medical, family caregiving, and qualifying exigency lines of coverage not otherwise required for their size (§ 1401-3.4.4). Under regulations effective December 11, 2025, employers that voluntarily provide lines of coverage beyond those mandated by their employee count are prohibited from requiring employees to contribute toward those voluntary benefits; the employer must fully subsidize the premium cost for the voluntary lines (19 Del. Admin. Code § 1401-3.6.3).

Source: 19 Del. C. §§ 3701, 3702, 3708 Source: 19 Del. Admin. Code § 1401-3.0 et seq.

Delaware's paid family and medical leave insurance program is funded by payroll contributions assessed on covered Delaware FICA wages up to the Social Security taxable wage base ($176,100 for 2025; indexed annually). Contributions began January 1, 2025; benefits became available January 1, 2026.

Contribution rates for 2025 and 2026

Under 19 Del. C. § 3705, the combined contribution rate for the 2025 and 2026 calendar years is 0.8% of covered wages, allocated by line of coverage:

• Parental leave: 0.32%
• Medical leave: 0.40%
• Family caregiving leave: 0.08%

Employers subject to only parental-leave coverage (10–24 employees) pay only the 0.32% parental-leave rate. Employers subject to all lines of coverage (25+ employees) pay the full 0.8% rate.

Beginning in 2027, the Delaware Department of Labor will set contribution rates annually based on sound actuarial principles. The statute caps the total contribution rate at 1.0% of wages; if the actuarially indicated rate would exceed 1.0%, the Department is authorized to reduce the wage-replacement percentage (below the baseline 80% of average weekly wages) to keep contributions within the statutory cap (19 Del. C. § 3705(a)(1)–(3)).

Employer/employee contribution split

Employers must pay at least 50% of the total contribution for each line of coverage they provide. The employer may require the employee to contribute up to the remaining 50%, but the employee's share may not exceed 50% of the contribution for any line of coverage.

Under 19 Del. Admin. Code § 1401-6.3, "The employer must cover at least 50% of the contribution cost for each line of coverage. The employer may require the employee to pay up to 50% of the total contribution, but no more." Self-employed individuals who voluntarily enroll in the program are responsible for 100% of the required contribution.

Employers may voluntarily pay more than 50%—including covering 100% of the cost—but they may not shift more than 50% of the cost to employees.

Example calculation (for a full-coverage employer with 25+ employees)

For an employee earning $50,000 in annual Delaware FICA wages in 2025, the total PFML contribution is:

$50,000 × 0.008 = $400

Under a 50/50 split:

• Employer contribution: $200
• Employee contribution (withheld from wages): $200

If the employer elects to cover the full cost, the employee contribution drops to $0.

Withholding mechanics and timing

Employers may withhold the employee's share (up to 50%) from each paycheck as contributions are assessed. Under 19 Del. Admin. Code § 1401-6.7, employers can only withhold contributions "at the time that the contribution was assessed." If an employer makes an error requiring back contributions from an employee, the employer may not retroactively withhold those amounts once the paycheck has been issued; the employer must cover the shortfall.

Contributions are due quarterly, within 30 days after the close of each calendar quarter, submitted electronically through the Delaware LaborFirst portal. Employers with fewer than 10 employees are not required to participate in the program, though they may voluntarily opt in (and if they do, the same contribution-split rules apply).

Voluntary lines and contribution restrictions

Under regulations effective December 11, 2025, employers that voluntarily provide lines of coverage not mandated by their employee count (e.g., a 10–24-employee employer voluntarily offering medical and family caregiving leave) are prohibited from requiring employees to contribute toward those voluntary lines; the employer must cover 100% of the premium cost for the voluntary benefits (19 Del. Admin. Code § 1401-3.6.3).

Source: 19 Del. C. § 3705 Source: 19 Del. Admin. Code § 1401-6.0 (Contributions) Source: 19 Del. Admin. Code § 1401-3.6.3 (Voluntary coverage employer-paid requirement)

Delaware's Healthy Delaware Families Act provides job protection and restoration rights to covered individuals who take family and medical leave. Under 19 Del. C. § 3707(a), a covered individual who exercises their right to family and medical leave benefits is entitled to be restored by the employer to the position held when the covered leave commenced, or to a position with equivalent seniority, status, employment benefits, pay, and other terms and conditions of employment. The statute expressly requires that the equivalent position include "fringe benefits and service credits, which the covered individual had been entitled to at the commencement of the covered leave."

The restoration obligation arises "on the expiration of the covered leave" — the employer must restore the employee when the leave period ends, assuming the employee returns to work. The statute offers the employer two restoration options: reinstate the employee to their same position, or place them in an equivalent position.

Equivalent position is a multi-factor standard. The statute does not define the term or provide implementing regulations, but it enumerates the dimensions of equivalency: seniority, status, employment benefits, pay, other terms and conditions of employment, fringe benefits, and service credits. The position need not be identical, but it must match the pre-leave position across those enumerated factors.

Benefits continuation during leave

Under 19 Del. C. § 3707(b), the employer must maintain any health care benefits the covered individual had before taking the leave for the duration of the leave, treating the employee "as if the covered individual had continued in employment continuously from the date the covered individual commenced the leave until the date the family and medical leave benefits terminate." This requirement applies to health care benefits the employee had immediately before the leave; the statute does not define "health care benefits" or enumerate which types of coverage (medical, dental, vision, etc.) are included. The employer must continue coverage at the same level and on the same terms as if the employee had remained actively at work.

The employee remains responsible for the employee's share of premiums during the leave. If the employee fails to pay their share, the employer may discontinue coverage during the leave in accordance with the terms of the plan. The statute's benefits-continuation requirement applies only to health care benefits — the statute does not require continuation of other benefits (such as life insurance, disability insurance, or pension accruals) during the leave period, nor does it require accrual of paid time off or seniority, though the statute does require that service credits accumulated before the leave be preserved and restored upon return under § 3707(a).

Relationship to FMLA and concurrent leave

Delaware PFML leave that also qualifies as leave under the federal Family and Medical Leave Act (FMLA) runs concurrently with FMLA leave and may not be taken in addition to FMLA leave (19 Del. C. § 3711(a)(1)). Because FMLA provides its own job-protection and benefits-continuation requirements (29 U.S.C. § 2614(a)), an employee on concurrent Delaware PFML and federal FMLA leave is subject to both statutes simultaneously. The practical effect is that such employees receive Delaware's wage-replacement benefits (up to 80% of average weekly wages for up to 12 weeks of parental leave, or up to 6 weeks in a 24-month period for medical and family caregiving leave combined) alongside the job-protection and benefits-continuation obligations imposed by both Delaware and federal law.

For employees whose Delaware PFML leave does not qualify as FMLA leave — for instance, employees at workplaces with fewer than 50 employees (below FMLA's employer-coverage threshold), or employees who have not worked 1,250 hours in the preceding 12 months for FMLA purposes but meet Delaware's eligibility requirements — Delaware's § 3707 job-protection and restoration rights apply independently under state law.

Statutory silence on exceptions

Delaware's PFML statute does not include a "key employee" exception allowing employers to deny restoration to highly compensated employees. (By contrast, the federal FMLA permits employers to deny restoration to a "key employee" — defined as a salaried employee among the highest-paid 10% of employees within 75 miles — if restoration would cause substantial and grievous economic injury to the employer's operations, 29 U.S.C. § 2614(b).) Delaware's § 3707(a) restoration obligation applies categorically to all covered individuals who take covered leave, without regard to salary or position.

The statute also does not address whether an employer may deny restoration to an employee whose position was eliminated during the leave for legitimate business reasons unrelated to the leave itself (for example, a reduction in force, departmental restructuring, or plant closure that would have affected the employee regardless of whether they took leave). Delaware has not issued regulations or guidance clarifying this scenario. Employers facing this fact pattern should document the business justification and the timing of the decision, and should apply the same criteria to employees on leave and employees not on leave to avoid a claim that the denial of restoration was retaliatory or discriminatory under 19 Del. C. § 3708 (which prohibits discrimination and retaliation for requesting, applying for, or using PFML benefits).

Source: 19 Del. C. § 3707 Source: 19 Del. C. § 3711 Source: 19 Del. C. § 3708

Delaware's paid family and medical leave insurance program permits covered individuals to take leave on an intermittent or reduced-schedule basis, subject to medical necessity, certification requirements, and a minimum increment rule that differs from the federal Family and Medical Leave Act (FMLA).

Statutory authorization and medical-necessity requirement

Under 19 Del. C. § 3706(a), intermittent or reduced leave may be taken only when medically necessary and supported by documentation as required by the certification requirements under § 3702. The statute provides that "family and medical leave benefits for intermittent or reduced leave schedules must be prorated" — that is, if a covered individual takes leave on a reduced schedule or intermittently, the weekly benefit is adjusted proportionally to reflect the actual hours of leave taken.

Intermittent leave means leave taken in separate blocks of time rather than one continuous period — for example, one day per week for ongoing medical treatment, or periodic absences to care for a family member with a chronic serious health condition.

Reduced-schedule leave (also called "reduced leave schedule") means a leave schedule that reduces the covered individual's usual number of hours per workweek or hours per workday. For instance, an employee ordinarily working 40 hours per week might work 20 hours per week while on a reduced-schedule leave, or an employee ordinarily working 8-hour days might work 4-hour days.

The certification from the health care provider must include specific statements when leave is requested intermittently or on a reduced schedule. For family caregiving leave (19 Del. C. § 3702(a)(2) or (a)(4)), the certification must include "a statement that the covered individual's intermittent leave or leave on a reduced leave schedule is necessary for the care of the family member who has the serious health condition, or will assist in the family member's recovery, and the expected duration and schedule of the intermittent leave or reduced leave schedule" (§ 3702(d)(3)(f)). For medical leave (the covered individual's own serious health condition under § 3702(a)(3)), the certification must include "a statement of the medical necessity of the intermittent leave or leave on a reduced leave schedule and the expected duration of the intermittent leave or reduced leave schedule" (§ 3702(d)(3)(g)).

Parental leave (19 Del. C. § 3702(a)(1)) is not addressed in the statute's intermittent-leave provisions, and the Delaware Administrative Code does not explicitly authorize or prohibit intermittent parental leave; the certification requirements and medical-necessity language apply to family caregiving and medical leave only. The Division of Paid Leave has not issued guidance clarifying whether parental leave may be taken intermittently under any circumstances.

One full workday minimum increment — Delaware regulation

The Delaware Administrative Code establishes a one-day minimum increment for intermittent PFML leave. Under 19 Del. Admin. Code § 1401-7.3, titled "Minimum duration of leave on an intermittent schedule":

> "If an employee requests leave on an intermittent schedule, the shortest leave that can be approved will be 1 full workday. Intermittent leave will not be allowed in increments less than a full day under the PFML insurance program."

This means that while Delaware PFML leave can be taken intermittently (subject to medical necessity), each individual block of leave must be at least one full workday. An employee may not take PFML benefits in hourly increments — for instance, leaving work two hours early for a medical appointment, or taking a half-day off to care for a family member — and receive Delaware PFML wage-replacement benefits for that partial day.

The regulation expressly acknowledges the difference between Delaware PFML and the federal FMLA. Section 1401-7.3.1 states: "Leave under the FMLA Regulations, 29 CFR 825.205, may be taken in periods of whole weeks, single days, hours, and, in some cases, even less than an hour. Nothing in the PFML Act changes the protections of the FMLA." Under the federal FMLA, intermittent leave for a serious health condition may be taken in increments as small as needed by the medical condition, including partial days and even fractions of an hour when medically necessary (29 C.F.R. § 825.205(a)). Delaware's regulation does not alter the federal FMLA entitlement to take unpaid leave in hourly increments; it limits only the increment in which Delaware PFML wage-replacement benefits are payable.

Practical effect: unpaid FMLA vs. paid PFML for partial days

When a covered individual takes intermittent leave in increments smaller than one full workday, the individual may be eligible for unpaid FMLA job protection (if the employer has 50 or more employees and the employee meets FMLA eligibility requirements), but will not receive Delaware PFML wage-replacement benefits for that partial-day absence. For example:

• An employee approved for intermittent medical leave takes a two-hour absence for a doctor's appointment. Under federal FMLA, the two hours count against the employee's 12-week FMLA entitlement, and the employer must treat the absence as FMLA-protected (assuming concurrent FMLA eligibility). Under Delaware PFML, the employee does not receive wage-replacement benefits for those two hours because the absence is less than one full workday.

• An employee approved for intermittent family caregiving leave needs to leave work early one day (a four-hour absence) to accompany a parent to chemotherapy. Again, the absence may be FMLA-protected (and count against the FMLA 12-week cap), but Delaware PFML benefits are not payable because the increment is less than a full day.

• An employee takes one full workday off each week for ongoing physical therapy following surgery. Each full-day absence qualifies for Delaware PFML wage-replacement benefits (subject to proration of the weekly benefit), and also counts as FMLA leave if the employee is FMLA-eligible.

Because Delaware PFML leave that also qualifies as FMLA leave runs concurrently with FMLA leave (19 Del. C. § 3711(a)(1)), employees taking intermittent leave must navigate both the federal FMLA's hourly-increment rule and Delaware PFML's one-day-minimum rule simultaneously. Employers administering both programs should track partial-day absences separately (FMLA job protection without PFML wage replacement) from full-day intermittent absences (both FMLA job protection and PFML wage replacement, subject to proration).

Benefit proration mechanics

When leave is taken intermittently or on a reduced schedule in full-day (or longer) increments, the weekly PFML benefit is prorated. The statute does not prescribe the proration formula, but the Division's online system calculates benefits by determining the covered individual's usual weekly schedule, then adjusting the benefit payment proportionally to reflect the actual days (or hours, for reduced-schedule leave meeting the one-day-minimum requirement) of leave taken in the week. An employee ordinarily working five days per week who takes one full day of intermittent leave in a given week would receive approximately one-fifth of their calculated weekly PFML benefit for that week (subject to rounding and the $100 minimum / $900 maximum weekly benefit caps under 19 Del. C. § 3704).

The Division of Paid Leave administers the public plan through the Delaware LaborFirst online portal, which provides tools for employers and employees to track intermittent and reduced-schedule leave and the corresponding prorated benefit payments (19 Del. Admin. Code § 1401-14.2).

Source: 19 Del. C. § 3706 Source: 19 Del. C. § 3702 Source: 19 Del. Admin. Code § 1401-7.3 Source: 19 Del. C. § 3711 Source: 29 C.F.R. § 825.205