Legislation Document

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 37, Title 19 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 3701. Definitions.

For purposes of this chapter:

(7) a. “Employer” means all those who employ employees working anywhere in this State.

b. “Employer” does not include any of the following:

3. Any business that is closed in its entirety for 30 consecutive days or more per year. year, except for a school, including a public, private, or charter school.

(25) “Wilful misconduct” means intentional malicious conduct or intentional conduct designed to defraud or seek an unconscionable advantage, and does not include mere negligence, gross negligence, or recklessness.

§ 3702. Eligibility for benefits; serious health condition; certification or documentation of leave.

(c) (1) An employer The Department or an approved private plan under § 3716 of this title shall collect and retain information from covered individuals verifying parental leave status, serious health condition, or qualifying exigency when a covered individual submits an application under this chapter. An employer The Department shall require that a request for leave based on a serious health condition under paragraph (a)(2) or (a)(3) of this section be supported by a certification issued by the health care provider of the covered individual or of the family member of the covered individual, as appropriate. The covered individual shall provide, in a timely manner, a copy of the certification to the employer Department or an approved private plan under § 3716 of this title.

(3) a. If the employer Department or an approved private plan under § 3716 of this title has reason to doubt the validity of a certification provided under this subsection, the employer Department or private plan may require, at the expense of the employer Department or private plan, that the covered individual obtain the opinion of a second health care provider designated or approved by the employer Department or private plan concerning any information certified under this subsection. A health care provider designated under this paragraph (c)(3)a. may not be employed on a regular basis by the employer, Department or private plan.

b. If the second opinion under paragraph (c)(3)a. of this section differs from the opinion in the original certification provided by the covered individual under this subsection, the employer Department or private plan may require, at the expense of the employer Department or private plan, that the employee obtain the opinion of a third health care provider designated or approved jointly by the employer Department or private plan and the covered individual concerning any information certified under this subsection. The third opinion is final and binding on the employer Department or private plan and the covered individual.

(4) a. The employer Department or an approved private plan under § 3716 of this title may require that the covered individual obtain subsequent recertifications on a reasonable basis.

c. Unless otherwise required by the covered individual’s health care provider, the employer Department or private plan may not require recertification more than once during a 30-day period and, in any case, may not unreasonably require recertification.

d. The employer Department or an approved private plan under § 3716 of this title shall pay for any recertification that is not covered by the covered individual’s health insurance.

(d) The employer Department or an approved private plan under § 3716 of this title shall may require that a request for leave based on a serious health condition under paragraph (a)(2) of this section of a family member be supported by documentation demonstrating the nature and extent of the relationship.

§ 3703. Duration of benefits.

(a) A covered individual is eligible for a maximum of 12 weeks of family and medical leave benefits in an application year. a 12-month period.

(1) The maximum number of weeks during which parental leave benefits are payable under § 3702(a)(1) of this title in an application year is 12 weeks. weeks in a 12-month period.

(2) The maximum aggregate number of weeks during which medical leave and family caregiving leave benefits are payable under § 3702(a)(2), (a)(3), and (a)(4) of this title in an application year is 6 weeks in any 24-month period. two consecutive application years.

(c) Except for parental leave benefits, and as permitted under § 3706 of this title, a covered individual is eligible for benefits under this chapter not more than once in a 24-month period.

(d) (c) An employer The Department must approve or deny an application for benefits under this section within 5 business days of receipt of a completed application that includes documentation necessary to review the claim. If the claim is denied, the employer Department shall notify the covered individual of the reason for the denial.

(e) (d) The employer must notify the Department, in a manner determined by the Department, within 3 business days of a claim being approved under this chapter. The first payment of benefits to a covered individual must be made within 30 days after the employer has notified the Department of the approved Department or private plan approves the claim. Subsequent payments must be made every 2 weeks.

(g) Family leave benefits are not payable for time taken after the death of the individual for whom the employee was on approved family leave.

§ 3704. Amount of benefits.

(c) The Department shall determine, by regulation, how benefits are to be calculated for covered individuals with more than 1 source of wages and when 12 months of wages preceding the submission of application for benefits are not available to the Department. [Repealed.]

(d) An individual filing a new claim for family and medical leave benefits must, at the time of filing such claim, disclose whether the individual owes child support obligations as required under paragraph (d)(4) of this section. If an individual owes child support obligations, and the Department determines the individual is eligible for family and medical leave benefits, the Department must notify the state or local child support enforcement agency enforcing such obligation that the individual has been determined to be eligible for family and medical leave benefits and must deduct and withhold such child support obligations from the individual’s family and medical leave benefit amount.

(1) Any amount deducted pursuant to this section must be paid by the Department to the appropriate state or local child support enforcement agency and for all purposes be treated as if it were paid to the individual as family and medical leave benefits.

(2) This subsection applies only if the state or local child support enforcement agency makes appropriate arrangements for reimbursement for the administrative costs incurred by the Department under this subsection which are attributable to child support obligations being enforced by the state or local child support enforcement agency.

(3) Under this section, “child support obligation” is defined as including only obligations that are being enforced pursuant to a plan described in § 454 of the Social Security Act [42 U.S.C. § 654] which has been approved by the Secretary of Health and Human Services under Part D of Title IV of the Social Security Act [42 U.S.C. § 651 et seq.].

(4) Under this section, “state or local child support enforcement agency” means any agency of a state or a political subdivision thereof operating pursuant to a plan described in paragraph (d)(3) of this section.

§ 3705. Contributions.

(a) Payroll contributions are authorized to finance the payment of benefits under this chapter. The Department shall regulate the deduction, withholding, and payment of the contribution. Employers may appeal the contribution amount in accordance with § 3711 of this title.

(c) With the exception of rates set forth in subsection (b) of this section, the Department must determine and set contribution rates, statewide average weekly wage, and maximum weekly benefits no later than October 1 of each year to take effect on January 1 of the following year.

§ 3709. Coordination of benefits.

(a) (1) Covered leave that also qualifies as leave under the FMLA runs concurrently with leave taken under the FMLA and may not be taken in addition to leave under the FMLA.

(2) An employer may require that payment made under this chapter be made concurrently or otherwise coordinated with payment made or leave allowed under the terms of disability or family care leave under a collective bargaining agreement or employer policy. The employer shall give employees written notice of this requirement. [Repealed.]

(3) An employer may require the use of up to two weeks of unused accrued paid time off before accessing family and medical leave benefits, and the use of accrued paid time off may count toward the total length of leave provided under this chapter, if the employee is not required to exhaust all paid time off. For purposes of this paragraph (a)(3) of this section, “paid time off” includes an employer’s provision of vacation and sick leave .

(4) A covered individual may not access family and medical leave benefits if the use of family and medical leave benefits results in the covered individual receiving more than 100% of the covered individual’s weekly wages.

§ 3711. Appeal.

(a) The process for review of a denial of family and medical leave benefits or an employer’s contribution amount is as follows:

(3) An individual covered by a private plan under § 3716 of this title may request reconsideration of a denial according to the private plan’s internal review process before the individual exercises the individual’s right to appeal the denial of the claim to the Department under paragraph (a)(2) of this section. The private plan’s reconsideration process may not require an individual to submit a reconsideration request less than 10 calendar days from the receipt of the notice of denial. A private plan’s reconsideration process must extend the deadline for submitting a reconsideration request when an individual establishes that circumstances beyond the individual’s control prevented the filing of a reconsideration request within the filing period prescribed by the private plan. If the private plan denies the request for reconsideration, the private plan must give notice of the denial to the employee in writing, or by electronic means if the employee consents to such communication. The notice must advise that the employee may appeal to the Department and provide contact information for the Department.

(c) The decision of the Board with respect to an individual’s claim for family and medical leave benefits is final and binding on the parties. parties, except where an appeal of the Board decision is timely appealed to the Superior Court under the Administrative Procedures Act, Chapter 101 of Title 29.

§ 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:

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 any period required under § 3703(a) and (d) 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:

d. Submit a certification to the Department, in a form regulated by the Department, certifying that the plan meets the obligations of this chapter chapter.

(h) An employer that meets its obligations under this chapter through a private plan is not required to provide claim documentation to the Department unless the claim is the subject of an appeal, complaint, audit, or specific inquiry from the Department.

§ 3718. Powers of the Department.

( l ) The Department may make and enter into any contract or agreement necessary or incidental to the performance of its duties and execution of its powers concerning the review and adjudication of claims for benefits. No contract may contain any provision in which a contractor derives a direct or indirect benefit from denying or otherwise influencing the outcome of a claim for benefits. The Department may promulgate regulations or otherwise set minimum requirements that must be included in a contract proposal.

§ 3719. Penalties.

(a) An employer who who, as a result of wilful misconduct or gross negligence, violates or fails to comply with any requirement of this chapter, including failing to file reports as prescribed by the Department, failing to make contributions as required by this chapter, and failing to properly handle and remit wage deductions from employees to the Department, is deemed in violation of this chapter and is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

§ 3725. Assignment of compensation prohibited; exemption from creditors’ claims.

Except for attachments pursuant to child support obligations in accordance with § 3704 of this title, any assignment, pledge, or encumbrance of any rights to benefits that are or may become due or payable under this chapter is void and exempt from all claims of creditors.

§ 3726. Execution of judgments.

(a) In general. — If any person liable to pay any assessment, interest, or penalty under this title or other titles subject to this chapter neglects or refuses to pay such amount after a judgment has been obtained pursuant to § 3718 of this title, or otherwise, the Department may execute upon such judgment as provided herein.

(b) Warrants for levy and sale of property. — The Department may issue a warrant directed to the sheriff of any county of this state commanding such sheriff to levy upon and sell the personal or real property of such person for the payment of the amount of the judgment and the cost of executing the warrant. The sheriff shall return such warrant to the Department and pay to the Department the money collected by virtue thereof within 60 days after receipt of the warrant. A copy of the warrant shall be filed with the Prothonotary and noticed on the regular judgment docket. All sales of real and personal property under authority of this section shall be made pursuant to the provisions of Title 10.

(c) Garnishment of bank accounts. — The Department may issue a notice of garnishment directed to any bank, commanding said garnishee, notwithstanding the provisions of § 3502 or § 4913(b) of Title 10, to set aside, account for, and pay over to the Department on account of the debt any property owed to or held for the debtor by said bank. A copy of the notice of garnishment or an abstract thereof shall be filed with the Prothonotary of the Superior Court and the fact of the garnishment noticed on the regular judgment docket.

(d) Garnishment of wages, salaries, and other amounts due from employers. — The Department may issue a notice of garnishment directed to a person owing to or holding for an employer who is a judgment debtor any wages, salaries, money, credits and effects, contract rights, or securities. The notice of garnishment must command the garnishee to set aside, account for, and pay over to the Department on account of the judgment all property then in the garnishee’s possession or which may become due to the judgment debtor by the garnishee, until the judgment and costs of execution are paid. A copy of the notice of garnishment or an abstract thereof must be filed with the Prothonotary of the Superior Court and the fact of the garnishment noticed on the regular judgment docket. The Department shall notify the garnishee in writing when the judgment and costs have been satisfied.

(e) The following are the duties of a garnishee and penalties for failure to garnish:

(1) A person receiving a notice of garnishment under subsection (c) or (d) of this section must respond to the Department within 20 days after service of the notice, not counting the date of service.

(2) A garnishee who knowingly fails to comply with a notice of garnishment after notice and assessment under subsection (d) of this section is liable for a penalty equal to the amount the garnishee was required to set aside, account for, and pay over to the Department.

(3) Within 30 days after the date of mailing of a notice of proposed assessment of a penalty under this subsection, the garnishee may file a written protest against the proposed assessment of penalty with the Department in which the garnishee must set forth the grounds on which the protest is based. If a protest is filed, the Director of the Division of Paid Leave, as designee of the Secretary of Labor, shall reconsider the proposed assessment of penalty and, if requested by the garnishee, shall grant the garnishee an oral hearing before the Board under § 3711 of this title. The Board’s decision is final and not subject to further appeal.

(4) A penalty under paragraph (e)(2) of this section becomes final 30 days after the mailing of the notice of proposed assessment of the penalty, except for those amounts for which the garnishee has filed a timely written protest with the Department under paragraph (e)(3) of this section.

(f) Notwithstanding § 3502 of Title 10, the legal or equitable property, wages, salaries, deposits, or moneys in banks, savings institutions, or loan associations, or other property or income of an employer owing tax assessments to the Department is not exempt from execution or attachment process issued on, or from collection of, a judgment obtained under § 3718 of this title.

Section 2. Amend Title 13 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 513. Judgment; order of support; other terms.

(b) (5) For purposes of Chapters 4, 5 and 6 of this title, “income” is defined as:

a. Any periodic form of payment due to an individual, regardless of source, including, but not limited to, wages, salary, commission, vacation pay, severance pay, bonuses, compensation as an independent contractor, workers’ compensation, disability, sick pay, SUB benefits, medical benefits, unemployment compensation, railroad retirement, pensions, annuity and retirement benefits; or benefits, medical and family leave benefits as defined under § 3701 of Title 19; or

(7) Any attachment or execution to enforce an order for child support, medical support, or unallocated alimony and child support entered under this title shall not be subject to the exemptions or limitations set forth in § 3502 or § 4913 of Title 10 or § 5503 of Title 29. Said attachment for support shall also have priority over any other attachment, except an attachment for federal tax liens, regardless of whether such other attachment was perfected prior to the support attachment. The support and medical support attachment shall be subject to the limitations set forth in § 303(b) of the Consumer Credit Protection Act (15 U.S.C. § 1673(b)); provided, however, that an attachment of unemployment compensation or medical and family leave benefits shall not exceed 50 percent of the weekly payment thereof.

§ 2208. State Directory of New Hires.

(e) Uses of new hire information. — The State Directory of New Hires shall make the specified information available to the following entities for the purposes described below.

(3) (3) The State Directory of New Hires shall grant access to information provided by employers pursuant to § 1156A of Title 30 to the State Division of Unemployment Insurance for the purpose of administering the State’s unemployment insurance services program and program, the State Division of Industrial Affairs for the purpose of administering the Workers’ Compensation Program. Program, and the State Division of Paid Leave for the purpose of administering the Paid Family and Medical Leave Program.

SPONSOR:	Rep. Heffernan & Rep. Lambert & Sen. S. McBride
Reps. Baumbach, Neal; Sen. Walsh