Delaware Code
Chapter 37. Family and Medical Leave Insurance Program
§ 3716. Private plans.

(a) (1) Except as provided under subsection (e) of this section, an employer may apply to the Department for approval to meet the employer's obligations under this chapter through a private plan. To be approved as meeting an employer's obligations under this chapter, a private plan must do all of the following:

a. Provide 1 or more of the following:

1. Family caregiving leave to a covered individual for the reasons under § 3702(a)(2) and (a)(4) of this title for the maximum number of weeks in a benefit year required under § 3703(a)(2) of this title.
2. Medical leave to a covered individual for the reasons under § 3702(a)(3) of this title for the maximum number of weeks in a benefit year required under § 3703(a)(2) of this title.
3. Parental leave to a covered individual for the reasons under § 3702(a)(1) of this title for the maximum number of weeks in a benefit year required under § 3703(a)(1) of this title.
b. Allow a covered individual to take, in the aggregate, the maximum number of weeks of covered leave in a benefit year or 24-month period as required under § 3703(a) and (d) of this title.
c. If family caregiving leave is provided, allow family caregiving leave to be taken for all purposes specified under § 3702(a)(2) and (a)(4) of this title.
d. If family caregiving leave is provided, allow family caregiving leave under § 3702(a)(2) and (a)(4) of this title to be taken to care for any family member.
e. If medical leave is provided, allow medical leave under § 3702(a)(3) of this title to be taken by a covered individual with any serious health condition.
f. Provide a wage replacement rate during all covered leave of at least the amount required under § 3704(a)(1) of this title.
g. Provide a maximum weekly benefit during all covered leave of at least the amount specified under § 3704(a)(3) of this title.
h. Provide a minimum weekly benefit during all covered leave of at least the amount specified under § 3704(a)(2) of this title.
i. Allow covered leave to be taken intermittently or on a reduced schedule as authorized under § 3706 of this title.
j. Impose no additional conditions or restrictions on the use of covered leave beyond those explicitly authorized by this chapter or regulations issued under this chapter.
k. Allow an employee covered under the private plan who is eligible to take covered leave under this chapter to take covered leave under the private plan.
l. Providing that the cost to employees covered by a private plan is not greater than the cost charged to employees under the State program.
m. Provide an internal administrative review process and notice to employees of the option to appeal a final determination of the private plan to the Family and Medical Leave Insurance Appeal, consistent with § 3711 of this title.
(2) For a private plan to be approved as meeting an employer's obligations under this chapter, the private plan must also comply with all of the following:

a. If the private plan is in the form of self-insurance, the employer must furnish a bond running to the State, with a surety company authorized to transact business in this State as surety, in a form as may be approved by the Department and in an amount as may be required by the Department. This paragraph (a)(2)a. does not apply to public employers.
b. Provide for all eligible employees throughout their period of employment.
c. If the private plan provides for insurance, the policy must be issued by an admitted insurer, as defined under § 1904 of Title 18.
d. Submit a certification to the Department, in a form regulated by the Department, certifying that the plan meets the obligations of this chapter
(b) An employer may provide all family and medical leave coverage through an approved private plan or may provide 1 or more of medical leave coverage, family caregiving leave coverage, or parental leave coverage using an approved private plan and provide the remaining coverage not provided through an approved private plan using the State program.
(c) The Department may withdraw approval for an employer's use of a private plan granted under subsection (a) of this section when terms or conditions of the plan have been violated. The Department may withdraw approval for an employer's use of a private plan for any of the following:

(1) Failure to pay approved benefits.
(2) Failure to pay benefits timely and in a manner consistent with the State program.
(3) Failure to maintain an adequate security deposit.
(4) Misuse of private plan trust funds.
(5) Failure to submit reports to the Department as required by regulations adopted by the Department.
(6) Failure to comply with this chapter or the regulations adopted under this chapter.
(d) An employee covered by a private plan approved under this section retains all applicable rights under §§ 3707 and 3708 of this title.
(e) (1) Private benefits in existence on May 10, 2022, that the Department deems to be comparable to the Family and Medical Leave Program under § 3713 of this title qualify as a private plan under this chapter for a period of 5 years from the start of contribution payments under § 3705 of this title if the Department's approval of private plans under this subsection would not adversely impact the solvency of the Fund.
(2) The Department may determine comparable value through consideration of factors including wage replacement, length of leave, interrelated benefits, eligibility criteria, or frequency of allowed leave.
(3) An employer seeking to qualify as a private plan under this subsection must notify the Department before January 1, 2024.
(f) The Department's denial of an employer's application under subsection (a) of this section, withdrawal of approval for an employer's use of a private plan under subsection (c) of this section, and decision under subsection (e) of this section are subject to the appeal process under § 3711 of this title.
(g) An employer that meets the employer's obligations under this chapter through a private plan may provide benefits greater than those required under paragraph (a)(1) of this section.