19 Del. Admin. Code §§ 1401-11.0

Current through Register Vol. 27, No. 12, June 1, 2024

Section 1401-11.0 - Notice

11.1 Nothing in this regulation shall create a cause of action for any person or entity, other than the Delaware Insurance Commissioner, the Department, or the Division, against an employer based upon a failure to serve the notice, or defective service of the notice. Nothing in this Section 11.0 shall establish a defense for any party to any cause of action based upon a failure by the employer to serve the notice, or by the defective service of the notice. However, employees ought to notify the Division if they believe their rights under this program are being violated and the Division will investigate the situation and take all appropriate actions, if necessary.

11.2 The Division shall make available, on its website, a Paid Family and Medical Leave notice for employers to utilize that meets the notice requirement set forth in 19 Del.C. § 3710(a).

11.3 Written notice required by 19 Del.C. § 3710(a)-(b), shall be provided to all of an employer's existing Delaware-based employees as defined in Section 1.0 of this regulation at least 30 days prior to the start of contributions on January 1, 2025.

11.4 Written notice required by 19 Del.C. § 3710(a)-(b) shall also be provided upon the hiring of an employee, when an employee requests leave, or when an employer acquires knowledge an employee's leave may be a qualifying event under the Act.

11.5 Any written notice required by the Act may be distributed to employees electronically at either the electronic mail address provided to the employee by the employer or to the personal electronic mail address provided to the employer by the employee.

11.6 Advanced notice prior to filing a claim. An employee should provide the employer with at least 30 days advance notice of a need for leave under the PFML program. If 30 days' notice is not practicable, because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable. "As soon as practicable" means as soon as both possible and practical, considering all the facts and circumstances in the individual case. When an employee becomes aware of a need for Delaware PFML leave less than 30 days in advance, it should be practicable for the employee to provide notice of the need for leave either the same day the employee knows they need leave or the next business day. In all cases, however, the determination of when an employee could practicably provide notice must consider the employee's individual facts and circumstances. When the need for leave is foreseeable at least 30 days in advance and an employee fails to give timely advance notice with no reasonable excuse, the employer, insurance carrier, or third party administrator may delay coverage until 30 days after the date the employee provides notice. For the employer, insurance carrier, or third party administrator to delay the start of leave, the need for leave and the approximate date leave would be taken must have been clearly foreseeable to the employee 30 days in advance of the leave.

11.6.1 If an employee is on intermittent leave for planned medical treatment for themselves or a family member with a serious health condition, the employee should provide the employer with as much advance notice as is reasonably possible prior to taking leave.

11.6.2 If an employee is on intermittent leave due to their own serious health condition or that of a family member, and the need for leave is unplanned, the employee should notify the employer as soon as practicable, in the usual and customary manner employees notify the employer if they will be absent from work.

19 Del. Admin. Code §§ 1401-11.0

27 DE Reg. 683 (3/1/2024) (Final)