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FMLA: Delaware

FMLA requirements for other states

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

Author: Susan A. P. Woodhouse, Littler

Summary

  • Delaware does not have a state family and medical leave law applicable to private employers. See Family and Medical Leave.
  • The Delaware Discrimination in Employment Act prohibits any employment practice that discriminates on the basis of an employee's sex, including pregnancy. See Pregnancy Leave and Accommodation.
  • Other types of leave may be available to Delaware employees - some required by federal, state or local law, and some provided by company policy, as well as several sources of income replacement. See Interaction of Leave Laws.

Family and Medical Leave

Delaware does not have a state family and medical leave law applicable to private employers. However, a Delaware employer with 50 or more employees is likely required to adhere to the federal Family and Medical Leave Act (FMLA).

Same-Sex Marriage

The Supreme Court ruled that the 14th Amendment requires a state to do the following:

  • License a marriage between two people of the same sex; and
  • Recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.

Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015).

Same-sex marriage is legal nationwide, and couples lawfully married in any state, including Delaware, are entitled to FMLA spousal leave benefits.

In addition, a Delaware employer should be careful if it seeks to confirm an employee's same-sex spousal relationship (for purposes of the FMLA) to ensure it does not discriminate in any way. While the FMLA allows an employer to confirm a family relationship, the employer's practices to confirm such relationships should be the same for employees in same-sex marriages as those in opposite-sex marriages (e.g., if an employer does not ask heterosexual employees for marriage licenses it should be careful about asking homosexual employees for such documentation).

Apart from FMLA considerations, employers with employees residing in Delaware should look at existing policies that provide for leave based on spousal relationships, such as non-FMLA leave, bereavement leave or military leave. Policy language (such as how a spouse is defined) may need to be revised.

Pregnancy Leave and Accommodation

Under the Delaware Discrimination in Employment Act (DDEA), an employer with four or more employees may not discriminate on the basis of an employee's sex. Reasonable accommodations must be provided to a pregnant employee under the same terms and conditions as provided to nonpregnant employees who are similar in their ability or inability to work. A reasonable accommodation may include time off to recover from childbirth. For more information on pregnancy accommodations, please see Disabilities (ADA): Delaware.

Interaction of Leave Laws

Other types of leave may be available to Delaware employees - some required by federal, state or local law, and some provided by company policy, as well as several sources of income replacement. See Other Leaves: Delaware. While some of these laws can run at the same time, others cannot.

Remain alert to the various types of leave available and take care to track an employee's leave of absence, including:

  • The date the leave begins;
  • The type of leave; and
  • The expected return date.

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.