WHERE is Delaware PFML...?

by Shelby A. Felton, Director & Product Compliance Counsel

While not as difficult to find as Waldo, it has been quite some time since we have looked for, I mean looked at, Delaware PFML. While we’re sure you can find Delaware Paid Leave and recall all of the details of it from our prior blog, we’ll briefly sum up the basics again.

Contributions start January 1, 2025, and benefits start January 1, 2026.

• Unlike other states, employers participating in the state plan are responsible for determining whether claims should be approved, the weekly benefit amount due to the employee, and the leave length. Employers with private plans shift those responsibilities to their carrier or TPA.
• Eligible employees may take leave for the following qualifying reasons: (1) parental leave, (2) care of a family member (limited to parents, children, spouses) with a serious health condition, (3) the employee’s own serious health condition, or (4) a qualifying military exigency.
• Employers with less than 10 employees can opt into parental leave.
• Employers with 10-24 employees must provide parental leave only but can opt into medical and caregiver/military exigency leave.
• Employers with 25 or more employees must provide all leave types.
• Based on employer size, employees may be able take up to 12 weeks per benefit year for parental leave and 6 weeks in any 24-month period for their own medical needs, family caregiving leave, or military exigency.?
• Contribution rates are based on the type of leave and employers can require employees to contribute up to 50%. If employees are required to contribute, employers must provide notice by December 1, 2024.
• Employees are eligible if they have been employed for 12 months, worked 1250 hours in the 12 months prior to leave, and work at least 60% of their time in Delaware.
• Benefits equal 80% of an employee’s average weekly wage up to a maximum of $900 per week through 2027.

The employee count occurs continuously and includes only employees in Delaware. Once an employer reaches 10 or 25 employees, it must provide the coverage for a full year. Employers that hit those thresholds will default into the public plan for the coverages they must provide.

A private plan process for DE PFML, however, is more difficult to find than Waldo. While the Delaware Paid Leave Division does not plan to release a private plan exemption process, employers will be able to “opt-out” of the state plan from September 1, 2024, through December 1, 2024. Employers that “opt-out” of the state plan must still provide the mandatory PMFL coverages but will do so through a private plan. In fact, employers with 10-24 employees will be able to offer all of the coverage types even though not mandated.? Employers with approved private plans will not have to provide contributions to the state.

What we understand from discussions with the Division is that the private plan opt-out will consist of carriers having their fully-insured policies approved by the Department of Insurance.? Employers will access the Delaware Paid Leave portal, identify their fully-insured carrier, and upload a policy checklist and/or the policy itself.? Self-insured employers will access the portal and upload a self-insured plan document with a surety bond. While employers will upload these documents during the opt-out period, private plans will not be effective until benefits start on January 1, 2026.

Unlike other PFML states, self-insured plans in DE must have at least 100 employees, unless that requirement is waived by the Division based on demonstrating the administrative capacity to manage a self-insured plan.? There is no information to clarify what it means to have the necessary “administrative capacity.” The Division did tell stakeholders that large employers with a small presence in DE that have self-insured plans in other PFML states will likely be accepted.? The Division explained that employers with less than 100 employees in Delaware will have to contact the Division directly to request to be self-insured; they cannot use the portal.? Self-insured employers will be allowed to collect contributions beginning January 1, 2025, to pre-fund their separately maintained PFML bank account.

We, and other stakeholders, have been meeting with the Delaware Paid Leave Division to request supporting materials for private plan process and detailed steps that employers should take to complete their application. The Division suggested that on or about August 19, 2024, it will post training materials, how-to-file screen shots, and a self-insured plan template on its website. Keep in mind, there will not be another opportunity to “opt-out” of the state plan until October 1, 2025.

We are sure that you heard rumors about the legislature trying to pass some changes to the PFML law. While the rumors were true, HB 438 failed to pass.? Regulations for DE PFML were effective on July 1, 2024, and March 11, 2024, but the most recent became final August 1 and will be effective August 11.?

Reliance Matrix Can Help!

Have questions or need help with a DE PFML private plan? Reliance Matrix offers employers fully insured and self-insured leave administration, as well as accommodation services. For more information, contact your Reliance Matrix account manager or send us a message to?[email protected].

Through its insurance and administrative services entities, Reliance Matrix offers integrated leave management services involving the FMLA, state-mandated paid family and medical leave and accommodation solutions. Product features and availability may vary by state. For more information, please contact your Reliance Matrix account manager, or reach us at?[email protected].

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