Maternity and Paternity Leave Laws in Delaware

In Delaware, a mix of federal and state laws provide unpaid pregnancy and parenting leave, but the state will soon offer paid leave too.

By , J.D. · UC Berkeley School of Law

Do you need time off work for pregnancy, childbirth, or parenting? Delaware state law doesn't currently provide paid pregnancy leave, but the state will soon offer a paid leave program that does. And if you work in Delaware, the federal Family and Medical Leave Act (FMLA) already gives you the right to take unpaid leave for these reasons.

In addition, the federal Pregnancy Discrimination Act (PDA) prohibits your employer from discriminating against you because of your pregnancy, which might give you the right to take time off work in some cases. And Delaware state law and the federal Pregnant Workers Fairness Act (PWFA) require employers to provide reasonable accommodations for pregnant employees, which could include time off work.

This article will discuss the current maternity and parental leave laws that protect employees in Delaware and what you can expect when the state's new paid leave program begins in 2026.

Taking Maternity Leave During Pregnancy in Delaware

There are two types of laws that might protect you if you need pregnancy leave:

  • laws prohibiting pregnancy discrimination, and
  • laws that require pregnancy leave.

Protections Under Delaware's Reasonable Accommodation Law

Delaware's Discrimination in Employment Act prohibits employers from making job decisions based on sex and pregnancy. The law also requires employers to provide reasonable accommodations for pregnant employees. (Del. Code tit. 19 § 711(b).)

A reasonable accommodation means changes to the job or facilities allowing an employee to continue to work. It could include changes like:

  • temporary transfer to a less strenuous position
  • more frequent breaks
  • modified work schedules
  • light duty, or
  • time off work to recover from childbirth.

Delaware employers with four or more employees must follow this discrimination law. (Del. Code tit. 19 § 710(7).)

Time Off Under the Pregnancy Discrimination Act

The federal Pregnancy Discrimination Act (PDA) applies to employers with at least 15 employees. This federal law doesn't require employers to give pregnant employees time off work. But it does require employers to treat employees who can't work due to pregnancy the same as employees who are temporarily disabled for other reasons, such as injuries or serious illnesses. (42 U.S.C. § 2000e(k).)

For instance, if your employer allows another employee to take time off to recover from surgery, you must also be allowed to take time off when you can't work because of your pregnancy.

Leave as a Reasonable Accommodation Under the PWFA

The Pregnant Workers Fairness Act (PWFA) is a federal law that requires covered employers to provide reasonable accommodations for employees who need them because of pregnancy, childbirth, or related medical conditions unless doing so would create an undue hardship for the business. (42 U.S.C. § 2000gg-1.) Like under Delaware's employment discrimination law, time off work can be a reasonable accommodation under the PWFA.

(Learn when you might be able to take time off as a reasonable accommodation under the Americans with Disabilities Act (ADA)).

Pregnancy Leave in Delaware Under the FMLA

The federal FMLA gives eligible employees the right to take up to 12 weeks off work in a one-year period for serious health conditions, including pregnancy and childbirth. (29 C.F.R. § 825.100.) But the FMLA doesn't cover all Delaware workers. To be eligible for FMLA leave for pregnancy, you must:

  • work for an employer with at least 50 employees
  • have worked for the employer for at least 12 months, and
  • have worked at least 1,250 hours for your employer during the 12 months immediately before your leave begins.

The FMLA allows eligible employees to take pregnancy leave intermittently if it's medically necessary. For example, if you have a prenatal check-up, you can use a couple of hours of FMLA leave and then go back to work. The same is true for morning sickness that doesn't last all day. (Learn more about taking FMLA leave for pregnancy.)

Parenting Leave Under the FMLA in Delaware

The federal FMLA gives covered employees in Delaware the right to take time off to bond with a new child—including adopted and foster children. This parental leave is part of the total 12-week FMLA leave. So, if you use six weeks of FMLA leave during your pregnancy, you'll have six weeks left to use for parenting leave.

Intermittent Parental Leave Under the FMLA

If you want to use your FMLA parenting leave a little at a time (for example, by returning to work half-time for a while), your employer must agree to it. You aren't automatically entitled to use FMLA parenting leave intermittently.

Paternity Leave When Both Parents Work for the Same Employer

If you're married to someone who works for the same company, your employer can limit the total amount of maternity and paternity leave you can take when your child is born. If you're taking FMLA leave for parenting, your employer can limit the total combined amount of leave you both take to 12 weeks. Whatever portion of your own 12 weeks of FMLA leave you don't use for parenting will still be available to you for other reasons, including your own serious health condition.

Maternity and Paternity Leave Under Delaware's Paid Leave Program

Some states have their own laws requiring family and medical leave. Delaware isn't currently one of them. But when the state's new paid leave program begins on January 1, 2026, covered employees will have job protection when they take leave—including pregnancy leave. (Del. Code tit. § 3707.)

Which Employees Qualify for Delaware's New Paid Family and Medical Leave Program?

To be covered by the state's paid Family and Medical Leave Insurance Program, you must meet the same employment qualifications as the FMLA (12 months and 1250 hours). But under the Delaware paid leave law, more employees are eligible for leave, as it covers employers with only 10 employees, and smaller employers can opt to join the insurance program. (Del. Code tit. § 3717.)

You might not be eligible for some types of leave if you work for a smaller employer, as follows (Del. Code tit. § 3701(7)):

  • Employers with 1-9 employees don't have to participate at all, or they can choose to provide parental, family, or medical leave, or a combination of the three.
  • Employers with 10-24 employees must comply only with the parental leave provisions (time off because of the birth, adoption, or foster placement of a new child), but they can opt to provide medical and/or family leave too.
  • Employers with 25 or more employees must provide all three types of leave coverage: parental, medical, and family leave.

So, if you work for an employer with 25 or more employees, you'll be able to take job-protected time off during your pregnancy for medical reasons. But if you work for an employer with 10-24 employees, you might not be covered before your baby is born, depending on which insurance programs your employer participates in.

How Long Will Leave Be Under Delaware's Paid Leave Program?

Under Delaware's new paid leave law, eligible employees can take up to 12 weeks of total leave per year (including all leave types). You'll be allowed to use all 12 weeks for parental leave if you want to, but you can only use 6 weeks every 24 months for family or medical leave. (Del. Code tit. § 3703.)

Can Parenting Leave Be Taken Intermittently?

Under Delaware's new paid leave law, you can take leave intermittently or work a reduced schedule "only when medically necessary and supported by documentation," which likely excludes parental leave. (Del. Code tit. § 3706.)

Can Two Parents Take Leave at the Same Time?

When two parents work for the same company, their employer can limit their parental or family leave to 12 weeks combined. Medical leave isn't affected, so if you use six weeks of parental leave, you'll still have six weeks of medical leave available. (Del. Code tit. 19 § 3703(b).)

Getting Paid During Your Maternity and Parental Leave in Delaware

FMLA leave and the time you take off as a reasonable accommodation under federal or state law is unpaid. Until Delaware's paid family and medical leave insurance program begins, you might have to rely on using your accrued paid time off (sick days, vacation, or PTO) to get paid during maternity and parental leave. In fact, your employer might require you to use your accrued paid time off.

Getting Paid for Maternity Leave Before 2026

Until the state's paid leave program begins, your employer might offer group insurance or paid leave benefits, such as:

If your employer doesn't offer benefits to cover pregnancy or childbirth, you might consider buying a private short-term insurance policy to cover maternity leave before state benefits become available.

Getting Paid for Maternity Leave After 2026

Although the state will begin collecting taxes for the Delaware Family and Medical Leave Insurance Program in 2025, you won't be able to file a claim for benefits until January 1, 2026. When it begins, the program will pay 80% of your average weekly wages during the 12 months before your leave begins—up to $900 per week. (Del. Code tit. § 3704.) The minimum benefit amount is $100 per week or your full weekly wage, whichever is more.

Once the state's paid leave law begins, you'll need to file a claim for state leave benefits through your employer. And employers can choose to provide a private plan if the benefits are at least as generous as the state insurance program. (Del. Code tit § 3716.)

Whether you're taking leave before or after Delaware's paid leave program starts, you'll want to talk to your HR representative or manager (and check your employee handbook) to find out what types of leave are available to you and how to file a claim.

Updated September 8, 2023

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