19 Del. Admin. Code § 1401-4.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 1401-4.0 - Duration of benefits

4.1 Maximum allowable benefit period. Depending on the type of leave, covered individuals can only take a maximum of 12 weeks of PFML in any application year.

4.1.1 Parental leave. The maximum duration of approved parental leave is 12 weeks in any application year.

4.1.1.1 The Act provides employers with 10 to 24 employees with the option to temporarily reduce the parental leave maximum benefit duration from 12 weeks to a minimum of 6 weeks for claims submitted prior to January 1, 2031 (the first 5 years after the start of benefits on January 1, 2026). To qualify for this option to temporarily reduce the maximum benefit duration, employers must notify the Division of their intention to do so by January 1, 2024.

4.1.1.2 If prior to January 1, 2031, employers who have availed themselves of this reduced parental leave option decide to offer the full 12 week benefit for parental leave claims, the employer may do so by notifying the Division.

4.1.1.3 Employers who chose to reduce maximum parental leave benefits must inform their employees, in writing, of this decision no later than December 1, 2024.

4.1.1.4 If the Division receives a complaint that the changes were discriminatory or done in a discriminatory manner, the Division shall investigate the claims as it would any other claim of discrimination.

4.1.2 Family caregiving leave. If the covered individual is on approved family caregiving leave and the person for whom the covered individual is caring dies, the reason for that leave has ended. For the public plan, the Division may continue paying the benefit to the covered individual until 7 days after the death of the family member or the previously approved end date for the leave, whichever is earlier. The covered individual must notify the employer and the Division via the Division's online portal of the date of death of this family member for whom the covered individual was caring within 72 hours of the person's passing. The job protection provisions of the Act also remain in effect as they would during any other period of approved leave.

4.1.3 Family and medical leave look-back period. The maximum aggregate number of weeks during which benefits are payable for family caregiving leave and medical leave is 6 weeks in any 24-month period. For all new claim applications, a look-back period will be required. The Division determines the look-back period is the 24-month period that ends on the first day of requested leave.

4.2 Parent or multiple family members. The Division may limit aggregate family caregiving leave requested when multiple employees who are family members work for the same employer and are requesting leave for the same qualifying event. The Division hereby determines those limits are that both employees who are family members may take the full amount of leave that they would otherwise be allowed, but the employees may not take leave concurrently, unless the employer decides that all similarly situated covered individuals shall be allowed to take leave concurrently.

4.2.1 If an employer decides that 1 set of covered individuals in the same or an equivalent situation can take leave concurrently, then all similar requests for that employer thereafter shall be allowed to be done concurrently.

4.2.2 When 2 parents working for the same employer are both entitled to parental, family caregiving or qualified exigency leave for the same qualifying event, the employer may limit the aggregate number of weeks of leave to which they may be entitled to 12 weeks during any 52-week period.

4.3 Receipt of a completed application. An employer, insurance carrier, or third-party administrator has 5 business days after the receipt of a completed application to approve or deny the claim for benefits.

4.3.1 The date of an employer, insurance carrier, or third party administrator's receipt of the completed application is not counted. The 5 business day time period does not begin until an employer, insurance carrier, or third party administrator is in receipt of all necessary documentation, including the required documentation from the relevant healthcare provider. Upon review of the claim, if the employer, insurance carrier, or third party administrator finds the information required to make a decision is missing or materially incorrect, then the employer, insurance carrier, or third party administrator will notify the employee that the claim is incomplete and additional information is needed. The 5 business day time frame will again begin upon receipt of an updated claim application from the employee.

4.3.2 For the PFML public plan, once all of the required information has been uploaded to the Division's online portal by the appropriate parties, the software system will provide an advisory notice to the employer regarding the approval or denial of a claim.

4.3.3 The final decision to approve or deny a claim, however, will be made by an employer, insurance carrier, or third party administrator based on the totality of the circumstances known to the employer, insurance carrier, or third party administrator.

4.3.4 To approve a public plan claim, an employer must do so through the Division's online electronic system. If not already in the system, all supporting documentation relied upon by the employer to adjudicate the claim must be uploaded into the Division's online electronic system, or its insurance carrier's administrative system, within 3 business days of a claim being approved under the Act.

4.3.5 Upon approving an application, the employer, insurance carrier or third-party administrator, shall provide the claimant with written notice of this determination. If approval was for public plan benefits done within the Division's online portal, the covered individual will automatically receive the required notification electronically through an electronic mail system to the email address provided.

4.3.6 If approval is done by an insurance carrier or third-party administrator, written notice shall be provided through an electronic mail system, if the covered individual's email address is known to the insurance carrier/administrator, or via regular mail.

4.3.7 The written approved notice referred to above shall include at least the following information:

4.3.7.1 The amount of the benefit payment;

4.3.7.2 The party or parties to whom the benefit payment instrument is made payable;

4.3.7.3 The party to whom the benefit payment instrument was forwarded;

4.3.7.4 The address of the party to whom the benefit payment instrument was forwarded; and

4.3.7.5 The date benefit payments began and expected date they will end, if known.

4.3.8 If a claim is denied, an employer shall notify the employee and provide the reason for denial.

4.3.8.1 If the denial was for public plan benefits submitted through the Division's online portal, the covered individual will automatically receive the required notification electronically through an electronic mail system to the email address provided by the employee.

4.3.8.2 If the denial is through an insurance carrier or third-party administrator, written notice shall be provided through an electronic mail system, if the covered individual's email address is known to the insurance carrier/administrator, or via regular mail.

4.3.8.3 The employer must ensure that all documents relating to the claim application and decision have been uploaded into the online portal. This requirement applies to all employers, regardless of whether they are utilizing a private insurance plan, self-insure, or third party administrator, to meet the requirements under the Act.

4.3.8.4 The notice shall inform the employee of the right to appeal the decision and shall provide the employee with instructions on how to file an appeal.

4.4 Applying for benefits. A covered individual may apply for benefits as soon as they are aware of the need for leave. If the need for leave is unforeseeable, a covered individual must apply for benefits within 30 days after their first day of leave is taken.

19 Del. Admin. Code § 1401-4.0

28 DE Reg. 147 (8/1/2024) (Final)