19 Del. Admin. Code §§ 1401-2.0

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

Section 1401-2.0 - Relevant federal laws and regulations

2.1 Application year under FMLA. The employer has the right to choose which method of counting the 12-month period works best for its business. Whichever method is chosen by the employer must be uniformly applied to all employees. Any change to an employer's selected application year must be made in accordance with 29 CFR 825.200. FMLA provides the 12-month period can be established in any of the following ways:

2.1.1 "Calendar year" is a 12-month period that runs from January 1 through December 31;

2.1.2 "Any fixed 12-months" is a 12-month period such as a fiscal year, a year starting on an employee's anniversary date, or a 12-month period required by state law;

2.1.3 "12-month period measured forward" is a 12-month period measured forward from the first date an employee takes family and medical leave. The next 12-month period would begin the first-time family and medical leave is taken after completion of the prior 12-month period; or

2.1.4 "A 'rolling' 12-month period measured backward" is 12-month period measured backward from the date an employee uses any family and medical leave. Under the "rolling" 12-month period, each time an employee takes family and medical leave, the remaining leave entitlement would be the balance of the 12 weeks which has not been used during the immediately preceding 12-months.

2.2 Spouses, children, and parents under FMLA.

2.2.1 A spouse, under the FMLA, is a husband or wife as defined or recognized in the state where the individuals were married and includes persons in common law or same-sex marriage. Spouse also includes a husband or wife in a marriage that was validly entered into outside of the United States if the marriage could have occurred here in at least one State. 29 CFR 825.102.

2.2.2 A "son or daughter" under the FMLA is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of person standing in loco parentis who is either:

2.2.2.1 Under 18 years of age; or

2.2.2.2 18 years of age or older and incapable of self-care because of a mental or physical disability at the time that leave under the FMLA is to commence.

2.2.3 A parent under the FMLA is the biological, adoptive, step, foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter as defined by FMLA. This term does not include parents "in law".

2.2.3.1 "In loco parentis" includes those with day-to-day responsibilities to care for and financially support a child.

2.2.3.2 An employee is to provide sufficient information to make the employer aware of the in loco parentis relationship. A simple statement asserting the relationship, including the name of the child and a statement of the employee's in loco parentis relationship to the child may be sufficient.

2.3 Health care provider, serious health condition, and continuing treatment under FMLA.

2.3.1 A health care provider under the FMLA includes:

2.3.1.1 A Doctor of Medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or

2.3.1.2 Any other person determined by the State to be capable of providing health care services. Others capable of providing health care services include only:

2.3.1.2.1 Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice as defined under State law;

2.3.1.2.2 Nurse practitioners, nurse-midwives, clinical social workers, and physician assistants who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law;

2.3.1.2.3 Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts. Where an employee or family member is receiving treatment from a Christian Science practitioner, an employee may not object to any requirement from an employer that the employee or family member submit to examination (though not treatment) to obtain a second or third certification from a health care provider other than a Christian Science practitioner except as otherwise provided under applicable State or local law or collective bargaining agreement;

2.3.1.2.4 Any health care provider from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and

2.3.1.2.5 A health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of the health care provider's practice as defined under that country's law.

2.3.1.3 The phrase "authorized to practice" as used in subsection 2.3 means that the provider must be authorized to diagnose and treat physical or mental health conditions by the state where they practice.

2.3.2 Serious health condition under the FMLA is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

2.3.2.1 Treatment does not include routine physical examinations, eye examinations, or dental examinations.

2.3.2.2 Ordinarily, unless complications arise, the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for PFML. Conditions for which cosmetic treatments are administered (for example, most treatments for acne or plastic surgery) are not serious health conditions unless inpatient hospital care is required or unless complications develop. Restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of the FMLA regulation are met. Mental illness or allergies may be serious health conditions but only if all the conditions of 29 CFR 825.113 are met.

2.3.3 Continuing treatment by a health care provider under the FMLA includes incapacity and treatment; pregnancy and prenatal care; chronic conditions; permanent or long-term conditions; and conditions requiring multiple treatments. Treatment is an in-person visit to a health care provider. The first in-person treatment visit must take place within 7 days of the first day of incapacity. Whether additional treatment visits or a regimen of continuing treatment is necessary within the 30-day period shall be determined by the health care provider.

2.3.3.1 Permanent or long-term conditions include Alzheimer's, a severe stroke, or the terminal stages of a disease.

2.3.3.2 Absences attributable to incapacity qualify for leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than 3 consecutive, full calendar days.

2.4 Employee hours, work location and job protection.

2.4.1 For purposes of determining the service hours requirement, the legal standard under the FMLA is "those hours actually worked for the employer." Time not actually worked, whether paid leave or unpaid leave, including vacation, holidays, furlough, sick leave, leave under the FMLA, or other time off is not included. Per 29 CFR 825.110, whether the employee has worked the minimum 1,250 hours of service is determined by the principles of the Fair Labor Standards Act.

2.4.2 The determination of whether an employee's particular work hours or wages were earned in Delaware or outside of Delaware shall be determined according to whether the income that arose from those hours or wages was withheld from the employee's paycheck as in-state or out-of-state by the Delaware Department of Finance's rules and regulations.

2.4.3 Equivalent position under the FMLA is one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, prerequisites, and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

2.5 Integrated employer and successor in interest.

2.5.1 An integrated employer exists where separate entities are deemed to be part of a single employer for purposes of FMLA, based upon the entire relationship between the entities viewed in its totality. Factors considered in determining an integrated employer include:

2.5.1.1 Common management;

2.5.1.2 Interrelation between operations;

2.5.1.3 Centralized control of labor relations; and

2.5.1.4 Degree of common ownership/financial control.

2.5.2 Successor in interest. The factors to consider when determining if an employer is a "successor in interest" are as follows:

2.5.2.1 Substantial continuity of the same business operations;

2.5.2.2 Use of the same plant;

2.5.2.3 Continuity of the work force;

2.5.2.4 Similarity of jobs and working conditions;

2.5.2.5 Similarity of supervisory personnel;

2.5.2.6 Similarity in machinery, equipment, and production methods;

2.5.2.7 Similarity of products or services; and

2.5.2.8 The ability of the predecessor to provide relief.

2.5.3 A successor in interest is determined by the totality of the circumstances, when considering the factors set forth in subsections 2.5.2.1 - 2.5.2.8. When an employer is a successor in interest, employees' entitlements are the same as if the employment by the predecessor and successor were continuous employment by a single employer.

2.6 Qualified exigency under FMLA.

2.6.1 Qualified exigency is a separate line of coverage which has its own FMLA rules and regulations but is required under the Act to be combined with family caregiving leave in terms of eligibility and contributions. The Act combines coverage for both qualified exigencies and family caregiving leave into a single contribution rate, so both coverages must be provided by employers.

2.6.2 Qualified exigency leave under the FMLA occurs "while the employee's spouse, son, daughter, or parent is on covered active duty or call to covered active-duty status (or has been notified of an impending call or order to covered active duty)." FMLA regulations limits "active-duty status" for the sake of qualified exigency leave to deployment in a foreign country. FMLA further defines a "qualifying exigency" as:

2.6.2.1 Issues arising from the military member's short notice deployment (i.e., deployment within 7 or less days of notice). For a period of up to 7 days from the day the military member receives notice of deployment, an employee may take qualifying exigency leave to address any issue that arises from the short notice deployment;

2.6.2.2 Attending military events and related activities, such as official ceremonies, programs, events and informational briefings, or family support or assistance programs sponsored by the military, military service organizations, or the American Red Cross that are related to the member's deployment;

2.6.2.3 Certain childcare and related activities arising from the military member's covered active duty, including arranging for alternative childcare, providing childcare on a non-routine, urgent, immediate need basis, enrolling in or transferring a child to a new school or day care facility. The employee taking FMLA qualifying exigency leave does not need to be related to the military member's child; however:

2.6.2.3.1 The military member must be the parent, spouse, son, or daughter of the employee taking FMLA leave; and

2.6.2.3.2 The child must be the child of the military member (including a child to whom the military member stands in loco parentis).

2.6.2.4 Certain activities arising from the military member's covered active duty related to care of the military member's parent who is incapable of self-care, such as arranging for alternative care, providing care on a non-routine, urgent, immediate need basis, admitting or transferring a parent to a new care facility, and attending certain meetings with staff at a care facility, such as meetings with hospice or social service providers. The employee taking FMLA qualifying exigency leave does not need to be related to the military member's parent; however:

2.6.2.4.1 The military member must be the parent, spouse, son, or daughter of the employee taking FMLA leave; and

2.6.2.4.2 The parent must be the parent of the military member (including an individual who stood in loco parentis to the military member when the member was a child).

2.6.2.5 Making or updating financial and legal arrangements to address a military member's absence while on covered active duty, including preparing and executing financial and healthcare powers of attorney, enrolling in the Defense Enrollment Eligibility Reporting System, or obtaining military identification cards;

2.6.2.6 Attending counseling for the employee, the military member, or the child of the military member when the need for that counseling arises from the covered active duty of the military member and is provided by someone other than a health care provider;

2.6.2.7 Taking up to 15 calendar days of leave to spend time with a military member who is on short-term, temporary Rest and Recuperation leave during deployment. The employee's leave for this reason must be taken while the military member is on Rest and Recuperation leave;

2.6.2.8 Certain post-deployment activities within 90 days of the end of the military member's covered active duty, including attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military, and addressing issues arising from the death of a military member, including attending the funeral; and

2.6.2.9 Any other event that the employee and employer agree is a qualifying exigency.

19 Del. Admin. Code §§ 1401-2.0

27 DE Reg. 52 (7/1/2023) (Final)