State Law Trend: Paid Family Leave

Employment Law

Coming soon to a state near you: paid family leave, with Delaware and Maryland joining the growing number of jurisdictions to enact new laws.

In May, Delaware became the 11th state to adopt paid family leave when Governor John Carney signed the Healthy Delaware Families Act into law, creating an insurance account fund paid into by employers with an 0.8 percent payroll tax.

The law provides eligible employees (any individual employed by an employer and who works in the state) with up to 12 weeks of paid parental leave and six weeks of paid medical, caregiving and military leave. Employees are eligible for leave once they have worked at least 1,250 hours in the 12 months prior to the first date of leave and were employed for 12 months prior to the first date of leave.

Employers with at least 25 employees are subject to all the leave provisions, while those with 10 to 25 employees are only required to provide parental leave; compliance is optional for employers with fewer than ten employees. Employers may opt out of the act’s requirements if they have an established paid leave program that offers comparable benefits and receive approval after applying for an exemption with the Delaware Department of Labor.

Employees may take paid leave for specified reasons: the birth, adoption or placement through foster care of a child; caring for a family member with a serious health condition (as defined by the Family and Medical Leave Act (FMLA)); having a serious health condition that makes the employee unable to perform the functions of his or her position; or a qualifying exigency (also defined by the FMLA).

Leave may be taken on an intermittent or reduced leave schedule basis (as long as the leave is medically necessary and the employee provides documentation), but employees may not use more than 12 weeks of paid leave in an application year. Leave must run concurrently with unpaid FMLA leave.

Employees are required to provide notice of their intention to take leave 30 days in advance, if known, or as soon as practicable.

The act provides protections for employees, who are entitled to return to the position held when the leave began (or to a position with equivalent seniority, status, employment benefits, pay, and other employment terms and conditions) and must retain any existing health care benefits for the duration of the leave.

Although the law takes effect on July 1, contributions to the fund will begin on January 1, 2025, with benefits available to employees beginning on January 1, 2026.

In a similar vein, Maryland passed the Time to Care Act (when the state legislature overrode Governor Lawrence J. Hogan’s veto) in April, allowing covered employees to take 12 weeks of paid leave to care for a newborn child, a specified family member or the individual’s own serious health condition, or to attend to a qualifying exigency arising out of a family member’s military deployment.

The act created the Family and Medical Leave Insurance (FAMLI) Program, with contributions set to begin on October 1, 2023, and payments scheduled for January 1, 2025.

Employers with at least one employee must participate in the program, but only employers with 15 or more employees must contribute. The total rate of contribution will be set by the Secretary of Labor in 2023 and will contain a portion paid from each employee’s wage and a payment from the employer.

If an employer already provides a paid leave plan, it may elect to keep its private plan as long as the plan meets or exceeds the rights, protections and benefits guaranteed by the act and the employer receives approval from the Department of Labor.

To qualify, employees must have worked at least 680 hours in the past year (roughly 17 weeks). FAMLI leave runs concurrently with leave taken under FMLA. If the need for leave is foreseeable, employers can require written notice 30 days in advance; otherwise, an employee must provide notice as soon as practicable.

While on leave, employees must continue to receive any employment health benefits and may only be fired for cause, with a return to an equivalent position of employment. Employers may not discharge, demote, discriminate or take adverse action against an employee for taking leave, applying for leave, or inquiring about FAMLI rights or benefits.

To read the Healthy Delaware Families Act, click here.

To read the Time to Care Act, click here.

Why it matters: Delaware and Maryland join California, Colorado, Connecticut, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Washington and Washington, D.C. (as well as San Francisco) in enacting mandatory paid family leave laws. The trend may continue, as other states are considering similar legislation.



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