Maternity Leave Laws in Delaware: Your Full Entitlements

The Family and Medical Leave Act (FMLA), codified at 29 U.S.C. § 2601 et seq., is the primary federal law protecting maternity leave rights. The FMLA entitles eligible employees to up to 12 weeks of unpaid, job-protected leave in a 12-month period for the birth of a child and bonding with a newborn. The law applies to employers with 50 or more employees within 75 miles, covering approximately 60% of the U.S. workforce.

To qualify, an employee must have worked for the employer for at least 12 months and completed at least 1,250 hours of service in the past 12 months. During FMLA leave, the employer must maintain the employee's health insurance coverage under the same terms as if the employee were actively working. Upon return from FMLA leave, the employee has a right to be restored to the same job or an equivalent position with equivalent pay, benefits, and terms of employment.

The FMLA is enforced by the U.S. Department of Labor (DOL), Wage and Hour Division. Eligible employees can take leave continuously or on an intermittent basis, such as for prenatal appointments. The law also applies to both mothers and fathers, though this guide focuses on maternity leave specifically. Employers cannot require employees to use paid leave before or during FMLA leave unless state law or company policy requires it.

Delaware has no dedicated state maternity leave statute separate from federal law. However, Delaware law provides two important protections that complement FMLA. First, the Delaware Pregnant Workers Fairness Act (Delaware Code Title 19, § 708) requires employers to provide reasonable accommodations to employees for known limitations related to pregnancy, childbirth, or related medical conditions, unless doing so would cause undue hardship. This applies to all Delaware employers, regardless of size.

Second, Delaware Code Title 19, § 711 makes it unlawful for employers to discriminate against employees on the basis of pregnancy, childbirth, or related medical conditions. This prohibition applies to all aspects of employment, including hiring, promotion, discipline, and termination. Unlike FMLA, which requires 50+ employees and 12 months of service, these state protections apply to all Delaware employers and employees, making them more expansive in scope for smaller businesses.

Delaware's approach is notably weaker than some states (California, New York) that mandate paid family leave or additional unpaid leave beyond FMLA. Delaware employers are not required to provide paid maternity leave, and leave entitlements in Delaware are limited to federal FMLA protections for covered employees. For Delaware employees working for employers with fewer than 50 employees, there is no federally mandated maternity leave right; however, the Pregnant Workers Fairness Act allows requests for workplace accommodations (flexible scheduling, modified duties, temporary leave without pay) that must be reasonably granted.

Delaware courts and the Delaware Department of Labor recognize maternity-related conditions as disabilities subject to accommodations under both the federal ADA and state disability discrimination law. Remedies under Delaware law include damages for lost wages, reinstatement, and compensatory damages for emotional distress.

FMLA does not apply to employees of employers with fewer than 50 employees within 75 miles. Employees who have not worked for their employer for at least 12 months are not eligible for FMLA maternity leave. Employees who have not worked 1,250 hours in the past 12 months do not qualify for FMLA protection, even if employed by a covered employer. Exempt (salaried) employees and employees in designated key positions (top 10% earners in a 75-mile radius) may not have restoration rights in limited circumstances, though they remain entitled to leave.

Delaware law does not mandate paid leave; employers may require unpaid leave or require employees to use accrued paid time off before unpaid FMLA leave, unless the employer's policy states otherwise. Health insurance continuation during unpaid leave is required only under FMLA and COBRA for employers with 20+ employees; smaller Delaware employers have no such obligation. Intermittent or reduced-schedule leave may be denied if it creates undue hardship for the employer's operations.

The Delaware Pregnant Workers Fairness Act does not require leave itself; it requires only reasonable accommodations. An accommodation may be denied if it imposes an undue hardship on the employer's business operations. At-will employment applies in Delaware; employers may terminate employees for lawful reasons, but maternity leave requests and pregnancy-related accommodations cannot be the motivation. Employees terminated while on FMLA leave or for requesting FMLA-qualifying leave have a retaliation claim.

Step 1: Document Everything. Keep records of all communications regarding your maternity leave request, including emails, messages, and notes about verbal conversations. Save copies of any medical certifications provided to your employer, your request for leave, and the employer's response. Document your work history—start date, hours worked, pay stubs—to establish your 12-month tenure and 1,250-hour threshold if needed. Take screenshots of company maternity leave policies or employee handbooks that mention leave entitlements.

Step 2: Make a Formal Written Request. Submit a written request for maternity leave as early as possible (at least 30 days before expected leave if practicable) to your human resources department or direct supervisor. Use the word "maternity leave" or "FMLA leave" explicitly in your request. Include your expected date of birth or anticipated leave date. If your employer provides an FMLA request form, complete it; if not, a simple email stating the dates and reason is sufficient. Keep a copy of your request and any employer acknowledgment.

Step 3: File a Charge If Denied or Retaliated Against. If your employer denies your FMLA request or retaliates against you for requesting leave, you must file a complaint with the U.S. Department of Labor, Wage and Hour Division, rather than with Delaware state agencies, because FMLA is federal law. The Delaware Wage and Hour Division office is located at 820 North French Street, Wilmington, DE 19801, phone (302) 761-8000. You have up to two years (or three years for willful violations) from the date of the violation to file. Online complaints can be submitted at www.dol.gov/agencies/whd. Include your name, employer name, address, the dates of leave requested and denied, and a description of what happened.

Step 4: Understand the Investigation Process. The DOL Wage and Hour Division will contact your employer and request records of your employment, hours worked, and FMLA compliance. This process typically takes 30-90 days. You may be asked to provide additional evidence, such as medical certifications or written policies. The investigator will determine whether your employer violated FMLA rights. If a violation is found and the parties cannot reach a settlement, the case may be referred for litigation by the DOL or you may pursue a private lawsuit.

Step 5: Consult an Employment Attorney if Needed. If your employer fails to restore you to your job after leave, terminates you for requesting maternity leave, or retaliates against you, consult a Delaware employment lawyer or an attorney licensed in federal court. Many employment attorneys work on contingency for FMLA cases. FMLA violations can result in damages including back pay, front pay, lost benefits, and attorney's fees. For pregnancy discrimination claims under Delaware law, contact the Delaware Department of Labor's Office of Labor Law Enforcement at (302) 761-8000. State discrimination claims have a 100-day filing deadline from the date of the alleged violation.