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August 25, 2025
Effective July 30, 2025, Delaware amended the Healthy Delaware Families Act (HDFA), the statute governing the state’s paid medical leave program (Paid Leave Program) for which benefits become available on January 1, 2026. See 2025 Del. HB 128 (House Bill 128). Effective August 11, 2025, Delaware also amended the regulations implementing the HDFA. This article discusses some of the key changes.
The Paid Leave Program provides paid leave for qualifying events, like (1) caring for a child; (2) caring for a sick family member; (3) caring for one’s own serious health condition; and (4) for qualifying exigencies.
Calculating the Amount of Benefits Due
The “average weekly wage” is the starting point for calculating the amount of benefits to which an employee is entitled under the Paid Leave Program. The “average weekly wage” will be calculated using the average gross earnings of the four completed calendar quarters immediately preceding the filing of a claim application. Previously, “average weekly wage” was to be calculated based on an employee’s gross earnings in the prior 52 weeks of employment divided by 52.
Determining Employer Coverage Through Employee Headcount
To determine whether and to what extent an employer is covered under the Paid Leave Program, employers must determine their employee headcount at the beginning of each quarter. Once an employer has ten or more employees, it must provide parental leave coverage for at least the next four consecutive quarters. Within ten days of the beginning of the quarter, the employer must provide 30 days’ notice to employees of their entitlement to parental leave coverage, and coverage must be effective the quarter following the expiration of the 30-day notice requirement. If the employer then falls below ten employees for four consecutive quarters, if may cease providing parental leave coverage, with the same notice requirements.
Once an employer reaches 25 employees, it must provide all types of leave governed by the Paid Leave Program, with the same notice requirements detailed above.
Clarifications to the Duration of Benefits
Previously, the Paid Leave Program provided that the maximum aggregate number of weeks during which an employee could take medical leave and family caregiving leave benefits was six weeks in any 24-month period. House Bill 128 provides for an aggregate of six weeks in an application year.
Additionally, the Paid Leave Program previously provided for benefits eligibility of not more than once in a 24-month period, except for parental leave benefits (up to 12 weeks per year can be used for parental leave). House Bill 128 now provides for benefits once in a 12-month period – again, except for parental leave benefits.
No Requirement to Exhaust Paid Time Off
Previously, the Paid Leave Program allowed employers to require employees to use accrued paid time off before accessing benefits under the program. House Bill 128 now prohibits employers from requiring employees to use accrued paid time off first. Furthermore, to the extent that an employee wishes to use accrued paid time off to supplement Paid Leave Program benefits, both the employer and employee have to agree to that arrangement.
Coordinating Paid Leave Program Benefits with Other Leave Benefits
House Bill 128 also provides that the Paid Leave Program is the primary payer of benefits, and other paid leave benefits must be coordinated with this benefit according to the terms of the policy or procedure governing other benefits. The bill also provides that disability insurance benefits may be offset by Paid Leave Program benefits per the terms of a disability insurance policy.
Employers with Private Plans
House Bill 128 addresses private plans as well. It clarifies that an employer that meets its obligations under the Paid Leave Program through a private plan does not have to provide claim documentation to the Delaware Department of Labor unless there is an appeal, complaint, audit, or specific inquiry from the Department. Any employer with fewer than 25 employees in Delaware that is otherwise exempted from the Paid Leave Program due to the size of their companies but that voluntarily elects to provide private plan coverage will be subject to all of the provisions of the Paid Leave Program.
Delaware Employer Takeaways
As you prepare for the Paid Leave Program’s January 2026 start date, these amendments are critical for you to understand. Seek counsel with questions, and be sure to update your policies and practices and train your personnel on the Paid Leave Program.
The author of this article, Patricia Tsipras, is a member of the Bar of Pennsylvania. This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in Pennsylvania, Delaware, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
