19 Del. Admin. Code §§ 1401-10.0
Current through Register Vol. 27, No. 12, June 1, 2024
Section 1401-10.0 - Coordination of benefits10.1 Paid time off. An employer may require a covered individual to use no more than 75% of earned but unused paid time off ("PTO") before accessing PFML benefits. Any paid time off required by an employer to be used by a covered individual prior to accessing PFML benefits may be counted against the length of a covered individual's PFML leave. A covered individual cannot be required to exhaust all of their PTO.10.1.1 An employer must provide employees with notice of its coordination policy for PTO and PFML benefits. This notice shall include, at a minimum, the following: 10.1.1.1 Whether use of a covered individual's unused accrued paid time off is required prior to accessing PFML benefits;10.1.1.2 How much of a covered individual's unused, accrued paid time off is required to be used before accessing PFML benefits; and10.1.1.3 Whether the use of accrued paid time off counts towards the total length of leave provided under the Act.10.1.2 Upon agreement between a covered individual and their employer, a covered individual may use their PTO to supplement their wages up to 100% of a covered individual's average weekly wage. Any agreement to do so must be in writing and signed and retained by the covered individual or their designated assistant and their employer.10.2 Employer provided short-term disability, long-term disability, or other paid leave policy. If PFML leave also qualifies for benefits from an employer provided short-term disability, long-term disability, or other paid leave policy, the employer may count both the wage replacement amount and the duration of the PFML leave against the benefit amounts and leave duration provided under any employer provided short-term or long-term disability policy. The employer must provide all employees with written notice of their intention to do so as required by 19 Del.C. § 3709(a)(2). 10.2.1 Whether an employer provided disability benefit or paid leave policy is primary or secondary depends on the terms of the disability or paid leave policy. 10.2.1.1 If the employer provided disability/paid leave policy is primary, the PFML benefit payment will be reduced by what the employer provided disability/paid leave policy pays so that the covered individual receives no more than 100% of their average weekly wage.10.2.1.2 If PFML is primary, the employer provided disability/paid leave policy will supplement the PFML benefit up to no more than 100% of a covered individual's average weekly wages.10.2.2 If there is no language within the policy identifying whether the policy is primary or secondary, then the PFML insurance program will be secondary.10.3 Covered individuals cannot receive more than 100% of their average weekly wage during their PFML benefit period. It is both the employer and the covered individual's shared responsibility to review benefit information to make sure any supplemental benefits or wages are integrated correctly with the PFML benefit to avoid an overpayment.10.4 Nothing in this regulation alters an employer's obligations under 19 Del.C. §3709(b).10.5 Section 10.0 of this regulation also applies to PFML leave that is taken on a reduced or intermittent schedule.10.6 Section 10.0 of this regulation does not apply to employer provided paid time off benefits that have been "grandfathered" as set forth in subsection 17.5. Coordination of benefits will be guided by the requirements of the grandfathered benefits and an employer's policies. In no event shall a covered individual receive more than their average weekly wage.19 Del. Admin. Code §§ 1401-10.0
27 DE Reg. 683 (3/1/2024) (Final)