Delaware has enacted HB 128 (“the Act”), which modifies the state’s upcoming paid family medical leave program (“Delaware Paid Leave”) before benefits become available on January 1, 2026. The Act became effective immediately upon enactment on July 30, 2025.
The Act significantly amends the provisions governing how an employer’s paid leave policies integrate with and coordinate with Delaware Paid Leave benefits. First, the Act provides that Delaware Paid Leave is the primary payor of benefits. As such, an employer’s disability insurance benefits may be offset by Delaware Paid Leave, per the terms of the disability policy. Other available income replacement benefits must be coordinated with Delaware Paid Leave benefits according to the terms of the policy or procedure governing other available benefits.
Second, the Act rescinds a provision that allowed an employer to require an employee to use accrued paid time off before accessing Delaware Paid Leave benefits. Instead, the law now provides that an employer may not require use of accrued paid time off prior to receipt of Delaware Paid Leave benefits. The Act also confirms that use of accrued paid time off to “top off” or supplement Delaware Paid Leave benefits requires both the employer and employee to agree to the top off.
Private plans are also impacted by the Act. Like many other paid family medical leave programs, employers may satisfy their obligations to comply with Delaware Paid Leave through a private plan. Prior to...
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