19 Del. Admin. Code § 1401-8.0

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

Section 1401-8.0 - Leave and employment protection

8.1 Employment protection. Upon returning from leave, a covered individual is entitled to be restored to the same position they held prior to taking leave or placed in position with equivalent terms and benefits. To be considered "equivalent," this position must be substantially similar to the covered individual's former position, including seniority, pay, benefits, employment terms, working conditions, work schedule, and location as their prior position. This position must also involve the same or substantially similar duties and responsibilities, requiring the same skill, effort, responsibility, and authority.

8.1.1 A covered individual is entitled to reinstatement, even if they have been replaced while on leave or their job has been restructured or reclassified.

8.1.2 As a condition of returning to work after medical leave, an employer may require covered individuals to present written documentation from their health care provider stating the employee is able to return to work. If required, this practice or policy shall be applied uniformly to all covered individuals who take medical leave. The employer may not require the covered individual to get a second opinion.

8.1.3 An employer is not obligated to reinstate an employee if:

8.1.3.1 The covered individual's leave extends beyond the maximum duration provided by 19 Del.C. § 3703(a)-(b) and the additional leave duration is not permitted by an employer's policy or any other state or federal law;

8.1.3.2 The covered individual's written contract for employment with the employer has ended pursuant to its terms;

8.1.3.3 The covered individual's position is eliminated due to legitimate downsizing or reorganization. A covered individual is subject to layoff the same as similarly situated individuals not taking leave;

8.1.3.4 The covered individual cannot perform the essential functions of their job any longer following the period of leave. A covered individual may be eligible to request reasonable accommodations under the Americans with Disabilities Act or any other applicable state or federal law;

8.1.3.5 The covered individual applied for or was approved for leave based upon a fraudulent application or certification.

8.1.4 An employer's duties and obligations under the Act extend to a successor in interest of an employer.

8.2 Health insurance benefits. A covered individual shall continue to be provided with and receive health care benefits that they would have had if they had not taken leave. However, to continue to receive health care benefits during the period of approved leave, the covered individual must continue to pay their share of the health care insurance premium to the employer.

8.2.1 The Division will not withhold these amounts from the covered individual's benefit payments.

8.2.2 The covered individual is entirely responsible for paying their share of the medical premium as applicable.

8.2.3 At no time will the Division be responsible for sending a covered individual's share of the medical premium to an employer for employer's payment to the insurer.

8.2.4 If a covered individual does not pay their required contribution towards their health care benefits during leave, the employer may terminate health insurance coverage for the covered individual. This does not constitute a violation of the Act.

8.2.4.1 Upon the covered individual's return from leave, the employer must still restore the covered individual to coverage and benefits equivalent to those the covered individual would have had, including family or dependent coverage, if leave had not been taken.

8.2.4.2 A covered individual may not be required to meet any qualification requirements imposed by the employer's health insurance plan including any waiting period, open enrollment period, or passing a medical examination to obtain reinstatement of coverage.

8.2.4.3 If an employer terminates a covered individual's health insurance per subsection 8.2.4 of this regulation and fails to restore the employee's health insurance as required by 19 Del.C. § 3707(b) upon the employee's return, the employer may be liable for benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable relief tailored to the harm suffered to the covered individual.

8.2.4.4 If the employer pays any part of the covered individual's share of their health insurance premium while the covered individual is on leave, the employer may recover the covered individual's share of health insurance premium paid by the employer by any legal means.

8.2.4.5 If a covered individual fails to return to work, the employer may recover the covered individual's share of health insurance premium paid by the employer by any legal means, including deducting the amount due from the employee's final paycheck.

8.3 Other benefits. If a covered individual is entitled to benefits such as life insurance, sick leave, vacation, pension, or 401k, prior to taking leave, those same benefits must also be available to the covered individual upon return from leave. The taking of leave may not result in the loss of any employment benefits accrued before the date on which the leave began.

8.3.1 The benefit described in subsection 8.3 must be resumed in the same manner and at the same level as when the covered individual's leave began unless the benefits have been eliminated or changed for similarly situated employees.

8.3.2 A covered individual is not entitled to the accrual of any seniority or employment benefits during any period of leave unless the terms of a collective bargaining agreement or employer policy provide otherwise.

8.4 A covered individual may either file a complaint with the Division or file a civil lawsuit against their employer in a court of competent jurisdiction in this State for a violation of the Act.

8.4.1 An individual is not required to file a complaint with the Division prior to bringing an action in court. If an individual files a complaint with the Division, they may not file a separate action in court.

8.4.2 Complaints must be submitted within 30 days of the alleged violation so that an investigation can be completed before the statute of limitations for filing a civil action in court expires.

8.5 Upon a finding of a violation, a covered individual shall be entitled to damages as set forth in 19 Del.C. § 3707(c).

19 Del. Admin. Code § 1401-8.0

27 DE Reg. 683 (3/1/2024)
28 DE Reg. 147 (8/1/2024) (Final)