19 Del. Admin. Code § 1401-1.0
The following words and terms, when used in this regulation, have the following meaning:
"Act" means the Healthy Delaware Families Act. 19 Del.C. Ch. 37.
"Application year" means the 12-month period of leave as defined in the Family Medical Leave Act ("FMLA") Regulations, 29 CFR 825.200(b) consisting of 52-weeks.
"Average weekly wage" means the employee's gross earnings, whether salaried or hourly (prior to any payroll deductions or withholdings) for the prior 52 weeks divided by 52.
"Board" means Family and Medical Leave Insurance Appeal Board.
"Child" means "son or daughter" as defined in the FMLA Regulations, 29 CFR 825 .
"Continuing treatment"" means as defined in the FMLA, 29 CFR 825.102.
"Covered active duty" means duty during the deployment of the member with the Armed Forces to a foreign country; and duty during the deployment of a reserve member with the Armed Forces to a foreign country under a call or order to active duty under a provision of law referred to in Section 101(a)(13)(B) of Title 10 of the United States Code. 10 USC § 101(a)(13)(B).
"Covered individual" means an individual employed for at least 1,250 hours of service performed within the territory of the State of Delaware with the employer during the previous 52-week or 12-month period and has worked for that employer for a period of at least 52 weeks or 12 months. The minimum 52-week or 12-month period of employment requirement does not have to be consecutive but if a break in service has lasted more than 7 years, the period of employment prior to the 7-year break is not counted.
"Department" means Department of Labor.
"Division" means Department of Labor, Division of Paid Leave.
"Employee" means an individual employed by an employer. For purposes of the Act, individuals primarily reporting for work at a worksite in this State are employees unless otherwise excluded. "Primarily" is defined as working at least 60% of an employee's work hours physically in Delaware each calendar quarter. Individuals primarily reporting for work at a worksite or telecommuting outside of this State are not considered employees under the Act unless the employer and employee elect in writing to reclassify them as such. Employee does not include any self-employed individual unless they separately qualify as a bona fide employee by paying themselves wages reported on Form W-2. An "employee" under the Paid Family and Medical Leave Insurance Program, 19 Del.C. Ch. 37 ("PFML") does not include the following types of individuals:
| * | Federal government workers, railroad workers, and employees of Tribal Governments; |
| * | State of Delaware employees in a casual/seasonal position covered under §5903(17)a. of Title 29; and |
| * | Department of Education employees who are in a casual/seasonal position that would be covered under §5903(17)a. of Title 29, or in an equivalent casual/seasonal position with an entity covered by State employee benefits. |
"Employer" means those who engage in commerce, or any industry or activity affecting commerce, anywhere within the State of Delaware as well as those acting, directly or indirectly, in the interest of a covered employer to any of the employees of the employer, subject to the limitations set forth in the Act. For purposes of the PFML, the employer who actually pays the employee will be considered that individual's employer.
| * | If an employer has employees physically working in Delaware, they are an employer for purposes of the Act. An employer's state of incorporation is immaterial. |
| * | Employer also includes any successor in interest of the employer as defined by 29 CFR 825.107, an integrated employer as defined by 29 CFR 825.104(c)(2), and a joint employer where 2 or more businesses exercise some control over the work or working conditions of the employee. Joint employers may be separate and distinct entities with separate owners, managers, and facilities. |
"Family and Medical Leave Act" or "FMLA" means the Family and Medical Leave Act of 1993, 2006 (29 USC §§ 2601-2654).
"Family and medical leave benefits" means benefits received pursuant to the Act for family caregiving, medical, or parental leave. For purposes of the Act, an individual is not entitled to family and medical leave benefits for an absence if an individual is receiving:
| * | temporary disability benefits under the Workers' Compensation Act, 19 Del.C. § 2301 et seq. due to a workplace accident or injury; |
| * | personal injury protection benefits under 21 Del.C. § 2118 due to an injury from an automobile accident; or |
| * | unemployment insurance benefits under 19 Del.C. § 3311 et seq. |
"Family caregiving" means those acts as set forth in the Act.
"Family member" means parent, child, and spouse, but it does not include siblings, parents-in-law, or any other relations not specified.
"Fund" means the Family and Medical Leave Insurance Account Fund created by the Act.
"Health care provider" means as defined under the FMLA 29 CFR 825.125.
"Inpatient care" means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity as defined in 29 CFR 825.113(b) or any subsequent treatment in connection with the inpatient care.
"Line of coverage" means the different coverages for the 4 different types of leave that are authorized under the Act:
| * | Parental leave: Leave authorized which offers covered individuals time off in the event of the birth, adoption, or fostering of a child. |
| * | Family caregiving leave: Leave authorized which offers covered individuals time off in the event of a serious health condition (illness or accident) of a child, spouse, or parent. |
| * | Medical leave: Leave authorized which offers covered individuals time off in the event of a serious health condition (illness or accident) of the employee themselves. |
| * | Qualified Exigencies: Leave authorized which offers covered individuals time off for qualified issues that arise in connection with a military deployment. |
"Parent" means as defined under the FMLA, 29 U.S.C. § 2611(7).
"Private plan" means a paid time off employee benefit to which the State of Delaware is not a party to the agreement, except in instances where the State of Delaware is the employer.
"Public plan" or "PFML" means the paid family and medical leave insurance program created by the Act.
"Qualifying exigency" means as defined under the FMLA, 29 CFR § 825.126.
"Serious health condition" means as defined under the FMLA. including 29 CFR 825.113 and 29 CFR 825.113.
"Small business" means those who employ 9 or less employees working anywhere within the State for the parental leave benefit and means those who employ 24 or less employees working anywhere within the State for family caregiving and medical leave benefits.
"Spouse" means as defined under the FMLA, 29 CFR 825.102.
"Willful" means whether the actor, which may be the claimant, designated assistant, or employer, knows or shows reckless disregard for whether their conduct violates the Act. If an actor acts in good faith and with due diligence, those factors weigh against a finding of willfulness.
19 Del. Admin. Code § 1401-1.0
28 DE Reg. 147 (8/1/2024) (Final)