19 Del. Admin. Code §§ 1401-3.0

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

Section 1401-3.0 - Eligibility for benefits; serious health condition; certification or documentation of leave

3.1 Employer exclusions. For purposes of the Act, the following are not considered employers and are excluded from coverage under the Act:

3.1.1 Anyone who employs less than 10 employees;

3.1.2 The Federal government; or

3.1.3 Employers that completely close their business for 30 consecutive days or more per year. To qualify under this exception, employers must not pay its employees during the annual closure, and the employer must not do any business with any client.

3.2 Employer eligibility and employee threshold number.

3.2.1 To be eligible under the Act, an employer must first employ the minimum number of employees who are subject to the provisions of the Act (the "threshold number") during the previous 12-month period. As contributions begin on January 1, 2025, the initial 12-month period to determine the employer's employee threshold number will be the 12-month period prior to the start of contributions. For parental leave, that threshold number is 10 employees. For family caregiving and medical leave, that threshold number is 25 employees. Employees subject to the provisions of the Act are those who meet or are reasonably expected to meet the requirements of a covered individual under the Act, being the 12-month employment period requirement and the 1,250 hours of service requirement during the previous 12-month period.

3.2.2 Employees who are covered by a waiver as set forth in subsection 6.8 of this regulation, signed by both the employer and employee, are excluded from this count towards the 10 or 25 employee threshold numbers. Employees who would normally be excluded from the count, as they are physically employed outside of Delaware, but who have signed a reclassification form, as set forth in subsection 6.15 of this regulation, with their employer, shall be included in this count towards the 10 or 25 employee threshold numbers.

3.3 Employers with fewer than 10 employees. If the number of employees working for an employer is below 10 for all of the previous 12-months (the "lookback period"), that employer shall not be subject to any of the provisions of the Act, unless they elect to "opt-in" to any of the lines of coverage as permitted by the provisions of the Act. Those employees on waivers are not included in this count, while those employees who have been reclassified are included in this count.

3.4 Employers with 10 to 24 employees. Employers that have 10 but fewer than 25 employees during the previous 12-months shall only be subject to the parental leave provisions of the Act.

3.4.1 This means that once an employer has 10 or more employees, they are required to provide parental leave coverage for at least the next 12-months, within 30 days after which the employer threshold count rose to 10 or more employees.

3.4.2 If more than 12 consecutive months pass and the employer continues to stay below 10 employees, the employer will no longer be required to provide parental leave coverage, effective the next pay period after they fall below 10 employees for 12 consecutive months.

3.4.3 If the employee count should thereafter rise to 10 or more (but fewer than 25) employees, the employer will once again be required to provide parental leave coverage for at least the next 12-months, within 30 days after which the employee count rose to 10 or more employees.

3.4.4 At any time while the employee count is between 10 and 24 employees, the employer may select to voluntarily "opt-in" to any of the other lines of coverage per the provisions of the Act.

3.4.5 Those employees with waivers are not included in this count towards either the 10 or 25 employee threshold numbers, while those employees who have been reclassified are included in this count.

3.4.6 If an employee is on leave, that leave will continue as approved, even if an employer's employee threshold count has decreased and ended an employer's obligation to provide a particular line of coverage. This applies to both continuous and reduced or intermittent leave approved prior to the change in the employee threshold count.

3.5 Employers with more than 24 employees. An employer with 25 or more employees during the previous 12-months shall be subject to the parental, family caregiving, medical leave, and qualified exigency leave provisions of the Act.

3.5.1 If the employee count should fall under 25 employees, the employer will still be required to provide all lines of coverage until the employee count remains below the 25 employee threshold for 12 consecutive months. On the 13th consecutive month, if the employer is still below the threshold, they will no longer be required to offer medical leave, family caregiving leave, or qualified exigency leave.

3.5.2 If the employee count should ever rise above 24 employees, the employer will once again be required to provide all lines of coverage for at least the next 12-months, within 30 days after which the employer threshold count rose above 24 employees.

3.5.3 Those employees on waivers are not included in this count towards the 25 employee threshold number, while those employees who have been reclassified are included in this count.

3.6 Employee notice. Whenever an employee gains or loses any coverage provided under the Act due to a change in the number of employees in the employer, the employer must provide notice to its employees within 30 days of the date of the change in coverage.

3.7 Continuation of waivers and reclassifications. If an employee and employer sign a waiver where the employee acknowledges that the terms of their employment do not anticipate them meeting the requirements for coverage, the waiver remains in effect regardless of any fluctuation in the employer's threshold account.

3.7.1 If an employee has signed a waiver to decline coverage, they will not need to sign a new waiver in the event that the employer should fall below 9 employees for more than 12-months, then rise back above 9 employees at some point thereafter.

3.7.2 If an employee and employer sign a reclassification form where the employee acknowledges that they should be included in this PFML insurance program despite the employee not being physically located in the State of Delaware, the reclassification remains in effect regardless of any fluctuation in the employer's threshold count. If an employee has signed a reclassification to accept coverage, they will not need to sign a new reclassification form if the employer should fall below 9 employees for more than 12-months, then rise back above 9 employees at some point thereafter.

3.8 Certification. A certification from a health care provider is sufficient if it contains all of the following:

3.8.1 Date on which the serious health condition began;

3.8.2 Probable duration of the serious health condition;

3.8.3 Appropriate medical facts known to the medical provider regarding the condition;

3.8.4 Statement that either:

3.8.4.1 The covered individual is needed to care for the family member who has a serious health condition, along with an estimate of the time the covered individual will need to care for the family member; or

3.8.4.2 The covered individual is unable to perform the functions of the covered individual's position due to their own serious health condition.

3.8.5 If leave is going to be taken intermittently or on a reduced leave schedule for planned medical treatment, the certification must include the dates on which the medical treatment is expected to be given and the duration of the medical treatment.

3.8.6 If leave is to be taken intermittently or on a reduced leave schedule by a covered individual to care for a family member who has a serious health condition, then the statement should include that the intermittent or reduced leave schedule is necessary for the care of the family member with the serious health condition or will assist in the family member's recovery and the expected duration and schedule of the intermittent or reduced leave.

3.8.7 If leave is going to be taken intermittently or on a reduced leave schedule for covered individual who has a serious health condition, the statement should include a determination that the intermittent or reduced leave schedule is medically necessary and the expected duration of intermittent or reduced leave.

3.8.8 This certification may also require any other information as the Division may determine. The employee is responsible for the cost of obtaining the initial certification form.

3.8.9 Validity of certification. Any reason to doubt the validity of a certification means the employer, or approved private plan administrator has credible, objective evidence that would reasonably support a belief to suspect, question or not trust the legitimacy or soundness of a certification of a serious health condition submitted on the behalf of a covered individual.

3.8.9.1 Health care provider opinions. If the employer or approved private plan reasonably believes the certification provided by the health care provider is invalid for the reasons set forth in subsection 3.8.9, then an employer or approved private plan can request, at its expense, a second opinion.

3.8.9.2 Should the second opinion differ from the first, the employer or approved private plan may request, from a health care provider mutually agreed upon by all parties, a third opinion, which shall also be at the expense of the employer or approved private plan.

3.8.9.3 Provisional leave when obtaining second or third opinion. Once a claim has been approved, leave and benefit payments will begin and will continue while any second or third opinion is being obtained.

3.9 Recertification standards. The standards to determine a reasonable basis for recertification may be governed by a collective bargaining agreement. If no collective bargaining agreement or provision in an agreement exists, the standard to determine a reasonable basis for recertification is objective, specific evidence of an event that brings the seriousness of the health issue into doubt.

3.9.1 This evidence shall be set forth in a sworn, notarized statement by those with direct knowledge of the event in question.

3.9.2 Only 1 recertification process can be requested or required every 30 days.

3.9.3 Employers shall process a recertification request through the Division's online portal, which will provide the necessary forms and notice of the request to the appropriate parties.

3.9.4 It is unreasonable for an employer to request a recertification prior to the expiration of the leave period set forth in the initial medical certification, unless the employer has a reasonable basis to do so, based upon objective, specific evidence of an event that brings the seriousness of the health issue into doubt.

3.10 Payment for recertification. Should any amount for recertification not be covered by a covered individual's health insurance, an employer or private plan is responsible for the cost of obtaining a recertification. As with all aspects of plan administration, the recertification process is subject to audits by the Division. If the Division determines that the employer routinely requires employees on approved leave to undergo the recertification process where it becomes a pattern of behavior, especially if the majority of those recertification processes reconfirm the justification for the employee's leave, the employer may be subject to either the job protections provisions or the retaliation provisions of the Act.

3.11 Documentation or self-certification. Documentation demonstrating the nature and extent of the relationship between the covered individual and the family member with the serious health condition may include self-certification by the applicant on a form in the Division's online portal, as the Division may determine.

3.12 Penalty. If a willfully false claim is made, the individual shall be disqualified from receiving benefits for 3 years and the Division shall seek repayment of any benefits improperly paid from the Fund and may seek an additional penalty of up to 50% of overpayment and a penalty as permitted by the Act. The case may also be referred to the Delaware Department of Justice for investigation and possible prosecution.

19 Del. Admin. Code §§ 1401-3.0

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