Is FMLA Paid Leave in Delaware? State Pay vs. Federal Rules

Federal FMLA leave in Delaware is unpaid, but Delaware now runs its own paid leave insurance program alongside it. The Healthy Delaware Families Act began paying benefits on January 1, 2026, and replaces up to 80 percent of your wages (capped at $900 per week) while you are out for a qualifying reason.¹ So the practical answer is yes, you can be paid during FMLA leave in Delaware, but the money comes from the state program, not from the federal law itself, and the two have separate eligibility rules.

What Delaware’s Paid Leave Actually Pays

Approved claims pay up to 80 percent of your average weekly wages, with a weekly cap of $900.¹ How many weeks you can draw depends on why you are out:

Parental leave for a new child by birth, adoption, or foster placement: up to 12 weeks per year.
Medical leave for your own serious health condition: up to 6 weeks every 24 months.
Family caregiving leave: up to 6 weeks every 24 months.
Military qualifying exigency leave: up to 6 weeks every 24 months.

Whatever combination of categories you use, paid benefits cannot exceed 12 weeks in a single year.²

The program is funded by payroll contributions of less than 1 percent of weekly wages, and your employer is allowed to require you to pay up to half of that cost.¹

Who Qualifies for the Paid Benefits

Qualifying for federal FMLA does not automatically qualify you for Delaware’s paid benefits. The state program has its own test. You need at least 12 months of service with your current Delaware employer and at least 1,250 hours worked during that time. Changing employers resets the clock, though returning to a former employer within seven years lets your earlier tenure count again.³

On top of that, you must work at least 60 percent of your time in Delaware, be paid on a W-2 (1099 independent contractors are excluded), and earn wages subject to FICA.³

The state program also uses a broader definition of family than federal FMLA. Federal law limits “family member” to a spouse, child, or parent, so siblings, grandparents, and in-laws are not covered under federal caregiving leave.

Which Employers Have to Participate

Coverage under Delaware’s program scales with headcount, measured over the previous 12 months:⁴

25 or more employees: must offer all leave types, including parental, medical, family caregiving, and military exigency.
10 to 24 employees: required to offer parental leave only.
Fewer than 10 employees: exempt, though they may opt in voluntarily.⁵

Employers can also step outside the state plan by buying an approved private insurance policy, or by self-insuring if they have at least 100 workers. A private plan has to deliver benefits at least as generous as the state program and must be approved by the Delaware Department of Insurance.⁶ If your employer uses a private carrier, your benefits should match the state minimums, but you file your claim through that carrier instead of the state.

Note the gap between federal and state coverage: federal FMLA applies to private employers with at least 50 employees within a 75-mile radius, plus public agencies and schools regardless of size.⁷ Delaware’s paid program reaches smaller private employers that federal FMLA skips, which means some Delaware workers get paid state benefits without any federal job-protection overlay at all.

How State Pay and Federal FMLA Fit Together

Delaware paid leave runs concurrently with federal FMLA, not on top of it.⁸ If you take six weeks of paid medical leave through the state, six weeks of your federal FMLA entitlement burn down at the same time. You are not getting 12 federal weeks plus 6 state weeks stacked back to back.

What you are getting is income replacement during weeks that would otherwise be unpaid, plus the federal job protection that keeps your position open. If one program’s clock runs out before the other, the remaining protection from whichever program still has time left continues to apply.

Federal FMLA itself provides up to 12 workweeks of unpaid, job-protected leave in a 12-month period, and up to 26 workweeks for military caregiver leave for a covered service member or recent veteran.⁹ To use it, you need 12 months of service with your employer (not necessarily consecutive, with breaks of up to seven years still counting) and 1,250 actual hours worked in the 12 months before leave begins.¹⁰ Paid vacation and sick balances do not count toward the 1,250 hours; only hours actually worked do.

What You Keep Besides the Paycheck

The state benefit replaces income. Federal FMLA protects two other things that matter just as much when you come back.

First, your job. Federal law entitles you to return to the same position or an equivalent one with the same pay, benefits, and working conditions.¹¹ “Equivalent” means substantially identical duties, shift, worksite, and opportunities for bonuses and overtime.¹² Unconditional raises that took effect while you were out, like cost-of-living adjustments, have to be reflected in your pay when you return. Seniority, retirement vesting credit, and accrued vacation you had before leave stay intact, though you do not accrue new seniority or benefits during the unpaid portion of leave.

Second, your health insurance. Your employer must keep your group health coverage going during FMLA leave at the same level and on the same terms as if you were still working.¹¹ You still owe your usual share of the premium, and your employer can set up a payment schedule for it. Miss those payments and coverage can be dropped. If you take leave and then do not come back, your employer can recover the premiums it paid on your behalf, unless you failed to return because of a continuing serious health condition or other circumstances outside your control.

Taxes and benefits: the state paid leave program pays wage replacement, but it does not change the federal rule that unpaid FMLA time is unpaid for purposes of accruing new seniority. The two programs are solving different problems in parallel.

Taking Leave in Smaller Pieces

FMLA leave does not have to be a single continuous block. For a chronic condition that needs periodic treatment, or a family member who needs ongoing care, you can take intermittent leave in small increments, down to the smallest unit your employer uses for other leave (and no larger than one hour).¹³ If a recurring schedule disrupts operations, your employer can temporarily transfer you to an alternative position with equivalent pay and benefits that better fits the schedule.¹⁰

Bonding leave for a new child is treated differently. You can only take it intermittently if your employer agrees; otherwise, it comes in one block.

How to Give Notice

When leave is foreseeable, like a planned surgery or a due date, you owe your employer at least 30 days’ advance notice. When it is not foreseeable, notice is due as soon as practicable, which usually means the same day or the next business day after you learn you will need it.¹⁴ You do not have to use the words “FMLA,” but you do need to give enough detail for your employer to see that the leave may qualify.

For state paid benefits, you file a claim through Delaware’s paid leave program (or through your employer’s approved private carrier if that is how your workplace is set up) and provide the medical or qualifying-event documentation the program requires. Because the state benefit and federal FMLA have separate eligibility rules, confirm with your employer or HR which programs you are being approved under, and how many weeks of each you have left.

1
Delaware Department of Labor. Delaware Paid Leave
2
Delaware Department of Labor. Employee Information and Resources – Delaware Paid Leave
3
Delaware Department of Labor. Guide to Delaware Paid Leave
4
Delaware Code Online. Delaware Code Title 19 – Chapter 37 Family and Medical Leave Insurance Program
5
Delaware Department of Labor. Employer Information and Resources – Delaware Paid Leave
6
Delaware Department of Labor. Use of Private Insurance to Provide Paid Family and Medical Leave
7
U.S. Department of Labor. Fact Sheet 28 – The Family and Medical Leave Act
8
Delaware Technical Community College. Healthy Delaware Families Act – State of Delaware Notice of Employee Rights
9
U.S. Department of Labor. Fact Sheet 28F – Reasons that Workers May Take Leave under the Family and Medical Leave Act
10
U.S. Department of Labor. FMLA Frequently Asked Questions
11
Office of the Law Revision Counsel. 29 USC 2614 – Employment and Benefits Protection
12
U.S. Department of Labor. Family and Medical Leave Act Advisor – Equivalent Position and Benefits
13
U.S. Department of Labor. Calculation of Leave under the Family and Medical Leave Act
14
eCFR. 29 CFR 825.302 – Employee Notice Requirements for Foreseeable FMLA Leave