To apply for FMLA in Delaware, confirm you meet the federal eligibility rules, give your employer notice (at least 30 days when the leave is foreseeable), submit a medical certification on the Department of Labor’s form, and, if you want partial wage replacement, file a separate claim through Delaware’s state paid leave program on the LaborFirst portal. The federal request protects your job. The state claim replaces part of your income. They run on parallel tracks, so most Delaware workers start both around the same time.
Check You’re Eligible Before You Apply
Federal FMLA has three hurdles, and you have to clear all of them at your current employer:
- At least 12 months of employment with that employer. The months don’t need to be consecutive, but gaps longer than seven years generally don’t count.
- At least 1,250 hours of actual work in the 12 months right before your leave starts. Only compensable working time counts, so unused paid vacation or sick days don’t add to the total.
- At least 50 employees within a 75-mile radius of your worksite, measured on the date you request leave.
If you and your spouse work for the same employer, you share a combined 12 weeks (rather than 12 each) for birth, adoption, foster placement, or caring for a parent with a serious health condition. Leave for your own condition or to care for a spouse or child isn’t subject to that shared cap.
Federal FMLA covers 12 workweeks of unpaid, job-protected leave in a 12-month period for the birth of your child and bonding, adoption or foster placement and bonding, care for a spouse, child, or parent with a serious health condition, your own serious health condition, or a qualifying exigency arising from a family member’s foreign military deployment. A separate category gives up to 26 weeks in a single 12-month period to care for a covered servicemember with a serious injury or illness.
A “serious health condition” isn’t every illness. It generally means inpatient care, or a period of incapacity lasting more than three consecutive full calendar days combined with ongoing treatment by a health care provider. Chronic conditions like epilepsy, asthma, or diabetes qualify if they cause periodic episodes requiring treatment.
If Federal FMLA Doesn’t Cover You
If your employer has fewer than 50 workers within that 75-mile radius, federal FMLA doesn’t apply regardless of your tenure. Delaware’s state paid leave program fills part of that gap. Employers with 25 or more employees are under full state coverage (parental, medical, caregiving, and military deployment leave). Employers with 10 to 24 employees must provide parental leave only. Employers with fewer than 10 employees are exempt, along with the federal government, railroads, tribal governments, and seasonal operations that shut down for a month or more.
To actually collect paid benefits from the state program, you must perform at least 60% of your work in Delaware each quarter, receive a W-2 from your employer, have worked there at least 12 months, and have logged at least 1,250 hours. Those last two mirror federal FMLA, so if you qualify for one you likely qualify for the other. Independent contractors on a 1099 aren’t covered.
Give Your Employer Notice
When you know a leave is coming (a scheduled surgery, an expected due date), you owe your employer at least 30 days’ notice. When something comes up suddenly, notify your employer as soon as possible, ideally the same day or the next business day after you learn about the need for leave.
Follow your employer’s standard call-in or leave-request procedures. Check the employee handbook for the specifics. If unusual circumstances prevent you from following those procedures (you’re hospitalized and unconscious, for example), the failure can’t be held against you.
Get Your Medical Certification
Most employers use the Department of Labor’s optional forms. For your own serious health condition, that’s WH-380-E. For leave to care for a family member, it’s WH-380-F. Both are available on the Department of Labor’s website or from your HR department.
Your health care provider completes the medical portion. The form asks for enough clinical detail to show the condition meets FMLA’s threshold: when it started, its probable duration, whether you need periodic treatment. A specific diagnosis isn’t required. Vague or incomplete certifications cause the most common delays, so sit with your provider while they fill it out if you can.
Tell your employer whether you’re requesting continuous leave (a single unbroken block) or intermittent leave (smaller chunks for recurring treatments or flare-ups of a chronic condition). For intermittent leave, include the expected frequency and duration of each episode. When your employer tracks intermittent leave, it must use increments no larger than one hour, or whatever smaller increment it already applies to other leave types.
If Your Certification Is Incomplete or Disputed
If your employer finds the certification incomplete or insufficient, it must tell you in writing exactly what’s missing and give you at least seven calendar days to fix it. Don’t ignore that notice. A certification that stays incomplete can result in denial.
If your employer doubts the certification’s validity, it can require a second opinion from a different provider at its expense. If the first and second conflict, the employer can request a third opinion, also at its expense. That third provider is chosen jointly by you and your employer, and the third opinion is final and binding. If your employer doesn’t negotiate the third provider in good faith, it’s stuck with your original certification.
Submit the Request
Turn in your completed certification through whatever channel your employer uses, whether that’s an HR representative or a digital portal. Keep copies of everything, and note the date and time of submission. That paper trail matters if a dispute later comes up about whether you met the notice deadline.
File a Delaware Paid Leave Claim on LaborFirst
Delaware’s paid leave claim is separate from your federal FMLA request. You submit it through the online Delaware LaborFirst portal, administered by the Division of Paid Leave within the Delaware Department of Labor. Payroll contributions to the program began January 1, 2025, and employees became eligible to file claims starting January 1, 2026.
The process runs in stages. You enter your information into the system. Your employer reviews the claim and either forwards it to your medical provider or flags it as ineligible. If a medical provider needs to weigh in, they complete a questionnaire through the system. Your employer then makes a final determination based on all the information, and you receive a notice of approval or denial. Denied claims include instructions for requesting reconsideration.
Timing tracks the federal rules. If your leave is foreseeable, submit the claim at least 30 days before your anticipated start date. For emergencies, file within 24 to 48 hours of the event, and no later than 30 days after your first day of leave. Approved benefits are paid retroactively to the first day of your approved leave, so you won’t lose money for the processing period.
Approved claims pay up to 80% of your wages, capped at $900 per week. The maximum weeks depend on the reason:
- Care for a new child: up to 12 weeks per year.
- Your own serious health condition: up to 6 weeks every 24 months.
- Care for a family member with a serious health condition: up to 6 weeks every 24 months.
- Military deployment assistance: up to 6 weeks every 24 months.
No employee can take more than 12 weeks of combined paid leave in a year, regardless of category. State paid benefits can run at the same time as federal FMLA leave, so for the weeks where both apply, your job is federally protected and the state program is replacing part of your wages.
What Your Employer Must Send Back
Your employer doesn’t have unlimited time to respond. Within five business days of receiving your leave request, it must provide an Eligibility Notice telling you whether you meet the basic FMLA requirements. If you’re not eligible, the notice has to identify which requirement you missed: months employed, hours worked, or employees at the worksite.
Along with the Eligibility Notice comes a Rights and Responsibilities Notice. It spells out what the employer expects during leave, including whether you need medical certification, how health insurance premiums will be handled, and whether you’ll be required to use accrued paid leave at the same time.
Once your employer has the medical certification and enough information to decide, it has another five business days to issue a Designation Notice. That’s the document that officially approves your leave and confirms it will count against your 12-week FMLA entitlement. If the employer denies the request or needs more information, the Designation Notice must explain why.
Using Accrued Paid Leave Alongside FMLA
Federal FMLA leave is unpaid by default, but you can substitute accrued vacation, sick, or personal leave so a paycheck keeps coming. Your employer can also require you to burn through accrued paid leave before shifting to unpaid status. Either way, the paid leave runs concurrently with FMLA and doesn’t extend your 12-week entitlement.
If your employer requires substitution, it must tell you, and you still need to follow the procedural steps its paid leave policy normally imposes, like submitting a PTO request. Skip those procedures and you lose the paid leave, though you keep the unpaid FMLA leave.
If Your Leave Is Denied or You’re Retaliated Against
Federal law prohibits your employer from denying leave you’re entitled to, retaliating against you for requesting it, or failing to restore you to your job afterward. You can’t be fired, demoted, disciplined, or otherwise punished for exercising your FMLA rights.
Complaints go to the U.S. Department of Labor’s Wage and Hour Division, which investigates FMLA violations. The toll-free helpline is 1-866-487-9243, available Monday through Friday. You can also bring a private lawsuit. The statute of limitations is generally two years from the date of the violation, extended to three years if the violation was willful.
For disputes about Delaware’s state paid leave program, a denial through the LaborFirst portal comes with instructions for requesting reconsideration of the decision.