Delaware Code Title 19. Labor § 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.  Disability insurance benefits may be offset by family and medical leave benefits pursuant to the terms of a disability insurance policy.

(3) An employer may not require a covered individual to use unused accrued paid time off prior to a covered individual accessing family and medical leave benefits.  An employer and employee may agree to use the employee's employer-provided accrued paid time off to supplement any paid family and medical leave benefits paid under this chapter.  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.

(5) The paid family and medical leave insurance program under this chapter is the primary payor.  Other available income replacement benefits must be coordinated with the paid family and medical leave benefit according to the terms of the policy or procedure governing other available benefits.

(b)(1) This chapter does not diminish an employer's obligation to comply with any of the following that provide more generous leave:

(2) An individual's right to covered leave may not be diminished by a collective bargaining agreement entered into or renewed, or an employer policy adopted or retained, after July 1, 2022.

(3) An agreement by an individual to waive the individual's rights under this chapter is void as against public policy.