DELAWARE’S NEW PAID FAMILY MEDICAL LEAVE LAW: EMPLOYER OBLIGATIONS UNCLEAR

By Tyler Micik

​In late January, Chris Counihan, Director, Division of Paid Leave for the Delaware Department of Labor (DDOL), shared the draft regulations for Delaware’s new Paid Family Medical Leave insurance program. Chris asked the State Chamber, among others, to submit feedback to the DDOL on the regulations by February 7 so the Department could have time to review everyone’s suggestions and submit a revised version of the regulations to the Office of the Registrar by February 15.

The State Chamber asked Timothy Holly, Esq., a partner in the labor and employment law department of Connolly Gallagher, LLP, to review the regulations and help formulate a response to the 42 pages of draft regulations on behalf of DSCC. These regulations are complicated for many, especially smaller businesses who are trying to navigate both Delaware and federal laws like the Family and Medical Leave Act (FMLA). It will to take time for employers to sort out what this new law means and how it will be implemented in real time and administered.

Time is of the essence. Delaware employers have a deadline of January 1, 2024, to take action if they want to pursue the opportunity to opt out of Delaware’s public plan and perhaps also potentially reduce the amount of parental leave they will be required to provide, though details for that are unclear. Employers must also be prepared to take action as it pertains to providing various notices to employees including regarding the amount of “contribution” that will be passed ontito employees through payroll deduction, particularly since many employees likely are unaware of this consequence to them from the new law (i.e. less pay in their pocket).

In February, Holly submitted a letter to the DDOL on behalf of the State Chamber which presents high-level comments and provides regulation-specific observations, requests, and/or concerns. Some examples from the letter include:

• “Provide more detail and clarity regarding options such as "private plans" and "grandfathered" plans. Employers should be given VERY clear options; and easy-to-use opportunity for employers to try but fail at grandfathering but still have time to pursue other options, rather than going directly into the fund. Relatedly, the regulations do not provide sufficient clarity regarding options or time to pursue them. The lack of sufficient options for employers to continue their own, generous leave programs with their employees, which they have shouldered the burden of for many years despite no requirement to do so (which includes many small employers), frustrates many, as does the unclear and seemingly deficient options and process to opt-out of the State program.”
• “Many employers have done away with "paid time off' programs that distinguish between "vacation" and "sick." Many allow a generous amount of PTO. Better explain how such PTO will be evaluated for purposes of DDOL making determinations about grandfathering.”​
• The in-state versus out-of-state hours issue is going to prove to be an extreme challenge for employers. It is going to be an extreme challenge to determine what is meant to be counted as "work" hours for all counting purposes (i.e., so that overpayment is not made on account of considering wages earned outside of Delaware, and so benefits are not overpaid based on wages earned outside of Delaware). Consider overnight travel, donning/doffing, wait-time, simply working from home, working while traveling between states, etc. Provide better explanation and guidance. Employers should not be put at risk on such issues that require judgment calls. Ample new liability is being created while the difficult task of administering eligibility and pay determinations is being forced onto the shoulders of employers, e.g., rather than the DOOL taking on the responsibility. Some method of DDOL determining when and what hours should be considered (without employer liability for the judgment calls) should be created.”

You can view the State Chamber’s full response to the draft regulations here. The State Chamber hopes this feedback, in addition to other’s recommendations, can be used to help the DDOL produce regulations that will be informative, helpful, and less burdensome on businesses as this new law is learned, implemented, and administered.

Although the February deadline has passed, the Department is still seeking feedback. It’s important for businesses to stay engaged throughout this process and read carefully through the draft and final regulations. While the State Chamber’s letter may be used by others to help tease out some thoughts and questions, others should continue to formulate their own comments, even if it’s only on a particular section of the draft regulations like grandfathering of private plans and share those comments with the DDOL and legislators. 

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