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Employee Health: Delaware

Employee Health requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Theresa Rogers


  • Delaware prohibits smoking in indoor workplaces, and employers are not required to provide smoking areas for either customers or employees. See Smoking in the Workplace.
  • Delaware permits the use of medical marijuana in limited circumstances. See Medical Marijuana.
  • Delaware has laws related to Good Samaritans and automated external defibrillators (AEDs). See Managing Emergency Medical Situations.

Smoking in the Workplace

Delaware's Clean Indoor Air Act prohibits smoking (including electronic smoking devices) in any indoor enclosed area to which the general public is invited or in which the general public is permitted, including, but not limited to, any workplace that is not exempted.

Smoking means:

  • The burning of a lighted cigarette, cigar, pipe or any other matter or substance that contains tobacco; or
  • The use of an electronic smoking device that creates an aerosol or vapor, in any manner or in any form.

Electronic smoking device means any product containing or delivering nicotine or any other similar substance intended for human consumption that can be used by a person to simulate smoking through inhalation of vapor or aerosol from the product. The term includes any such device, whether manufactured, distributed, marketed or sold as an e-cigarette, e-cigar, e-pipe, e-hookah or vape pen, or under any other product name or descriptor.

Workplace means an area in a place of employment where one or more employees are routinely assigned and perform services for their employer.

Employer means any person, partnership, association, corporation or nonprofit entity that employs one or more persons.

Place of employment means any indoor area or portion of it under an employer's control in which employees perform services, but that is not generally accessible to the public.

+16 Del. C. § 2902; +16 Del. C. § 2903; +CDR 19-1000-1321.

An employer is not required to provide an outdoor smoking area for either customers or employees and is not required to provide smoking breaks to employees.

The law does not apply to:

  • Private homes and automobiles, unless being used for child care or day care;
  • Any indoor area where private social functions are being held when seating arrangements are under the control of the sponsor of the function and not the owner, operator, manager or person in charge of the indoor area;
  • Limousines under private hire;
  • Up to 25% of hotel rooms at a hotel; and
  • Any fundraising activity or function sponsored by a fraternal benefit society, provided that the activity takes place on property owned or leased by the organization.

+16 Del. C. § 2904.

In addition, a vapor establishment is permitted to have emissions produced by electronic smoking devices within their places of business, but certain conditions must be met. +16 Del. C. § 2908.

"Warning: Smoking Permitted" signs must be prominently posted and properly maintained wherever smoking is allowed. The signs must be posted and maintained by the owner, operator, manager or other person having control of the area. The letters must be at least one inch high. +16 Del. C. § 2904.

An employer is prohibited from terminating or discriminating against an employee who has filed a complaint or given information to the state Department of Labor under the law or is involved in a proceeding under the law. Violations for retaliating against an employee are subject to a civil penalty between $2,000 and $10,000 for each violation. Other violations of this law are subject to an administrative penalty of $100 for a first violation and a minimum of $250 for each subsequent violation. +16 Del. C. § 2907.

Medical Marijuana Act

The Delaware Medical Marijuana Act permits registered patients with a debilitating medical condition to use marijuana for medicinal purposes. +16 Del. C. § 4901A. A debilitating medical condition includes, but is not limited to, one or more of the following:

  • Cancer;
  • HIV or AIDS;
  • Decompensated cirrhosis;
  • Amyotrophic lateral sclerosis;
  • Alzheimer's disease;
  • Post-traumatic stress disorder; or
  • A chronic or debilitating disease or medical condition or its treatment that produces:
    • Cachexia;
    • Severe, debilitating pain, that has not responded to previously prescribed medication or surgical measures for more than three months or for which other treatment options produced serious side effects;
    • Intractable nausea;
    • Seizures; or
    • Severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis.

+Del. Code Ann. tit. 16, § 4902A(3).

Delaware's law does not require an employer to accommodate the use of medical marijuana or to allow an employee to use or be under the influence of marijuana on the premises of the place of employment or during working hours. The law, however, expressly prohibits employers from discriminating against a person in hiring, termination or any term or condition of employment, or otherwise penalize (discipline) a person, if the discrimination is based upon either of the following:

  • The person's status as a registered patient; or
  • A registered qualifying patient's positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.

+Del. Code Ann. tit. 16, § 4905A(a)(3).

An employer need not permit or accommodate marijuana use or ingestion in the workplace, or an employee working while under the influence of marijuana.

A Delaware employer should also be mindful of the federal ADA and Drug-Free Workplace Act.

A Delaware superior court found that the state's law protecting medical marijuana users does not conflict with the federal Controlled Substances Act. See Chance v. Kraft Heinz Foods Co., +2018 Del. Super. LEXIS 1773 (Del. Super. Dec. 17, 2018). In that case, an employee with a state-issued medical marijuana card was terminated after a positive drug test three days after a workplace accident. The court determined that the state law's antidiscrimination provisions do not require an employer to participate in an activity that is illegal under federal law, such as the manufacture of a controlled substance. Rather, the state law simply prohibits an employer from "discriminating based on medical marijuana use." The court concluded that the state law does not make it impossible to comply with federal law, so the federal Controlled Substances Act does not preempt the state law. Further, the court held that persons who use medical marijuana have an implied private right of action and may sue in state court to enforce their rights under the state law's antidiscrimination provisions.

Managing Emergency Medical Situations

Good Samaritan Laws

Under the Delaware Good Samaritan law, an individual who voluntarily renders first aid, emergency medical treatment or rescue assistance without the expectation of receiving compensation will be free from liability for injuries or death caused by the aid. This is true as long as the injuries or death were not caused willfully, wantonly, recklessly or by gross negligence. +16 Del. C. § 6801.

Automated External Defibrillators (AEDs)

An entity that has an AED must do all of the following:

  • Train potential users in the correct use of the device and in CPR (the training should be conducted by a nationally certified training organizer, such as the American Red Cross, and approved by the Delaware EMS Medical Director);
  • Maintain and test the AED as instructed by the manufacturer;
  • Notify appropriate EMS upon use of the device in an emergency situation, and report any clinical use to an appropriate licensed physician or medical authority.

+16 Del.C. § 3003C.

When use of the AED meets the requirements of the Good Samaritan Law discussed above, the same liability exemption will be given. The entity that had the AED will also be free from liability. +16 Del.C. § 3005C.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.