Delaware Paid Sick Leave Laws: Your Entitlements

The Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, is the primary federal law addressing leave entitlements. FMLA applies to covered employers with 50 or more employees and requires them to provide up to 12 weeks of unpaid, job-protected leave per year for qualifying reasons including the employee's own serious health condition, a family member's serious health condition, childbirth, adoption, or military caregiver leave.

However, FMLA does not require paid leave—only unpaid leave with continued health insurance benefits. The Department of Labor enforces FMLA through the Wage and Hour Division. Employers covered by FMLA must restore employees to the same or an equivalent position after leave. Remedies for FMLA violations include damages for lost wages and benefits, liquidated damages equal to the damages award, and attorney's fees. Many employees assume FMLA guarantees paid time off, but it only protects the job itself during an unpaid absence.

Federal law does not mandate paid sick leave for any private employer. This gap means that outside of state and local mandates, employers in most jurisdictions may legally deny paid sick leave entirely, though many choose to offer it as a competitive benefit.

Delaware state law does not impose a paid sick leave requirement on private employers. Delaware Code Title 19, Chapter 7, which governs wage and hour protections, establishes minimum wage ($13.25 per hour as of 2024) and overtime requirements but contains no mandatory paid sick leave provision.

Unlike California, New York, and many other states that have enacted statewide paid sick leave laws, Delaware has left this issue to the municipal level. This means that employees in Delaware have no uniform, statewide right to paid sick leave unless they work for a municipality that has enacted its own requirement.

Two major Delaware cities have established paid sick leave ordinances. Wilmington City Code § 26.509 requires employers with 15 or more employees to provide at least 1 paid sick day per year (40 hours), accruing at a rate of no less than 1 hour per 30 hours worked. Newark City Code § 25-4.2 contains a similar requirement: employers with 15 or more employees must provide at least 1 paid sick day per year. Both ordinances cover private sector employees and apply to businesses with a significant presence in those cities.

State law is weaker than federal FMLA in that it provides no mandate at all, whereas FMLA at least guarantees unpaid, job-protected leave for covered employers and qualifying reasons. However, local ordinances in Wilmington and Newark do provide protection—though only to those municipalities' residents and employees of companies operating there. Employees outside these jurisdictions in Delaware have no legal entitlement to paid sick leave under state or local law unless their employer voluntarily provides it.

Delaware state law: No mandatory paid sick leave for any private employer.

Wilmington ordinance (City Code § 26.509): Applies to employers with 15 or more employees. Minimum accrual: 1 hour per 30 hours worked. Minimum annual entitlement: 40 hours (1 paid sick day) per year.

Newark ordinance (City Code § 25-4.2): Applies to employers with 15 or more employees. Minimum entitlement: 40 hours (1 paid sick day) per year.

Federal FMLA: Applies to employers with 50 or more employees within a 75-mile radius. Provides up to 12 weeks of unpaid leave per year. Filing deadline: No specific deadline; must request leave when foreseeable or as soon as practicable when unforeseeable.

Delaware's absence of a statewide paid sick leave law creates broad exceptions. Private employers operating solely in unincorporated Delaware areas or in municipalities without ordinances (most of the state) have no legal obligation to provide paid sick leave. This is the primary exception: private sector employers outside Wilmington and Newark are not required to offer any paid sick leave.

For Wilmington and Newark ordinances, exceptions include: (1) employers with fewer than 15 employees are not covered, creating a carve-out for small businesses; (2) employers may limit paid sick leave use to employee illness, family member illness, or domestic violence-related absences—not general personal time; (3) paid sick leave accrual requirements do not apply if an employer provides a lump sum of at least 40 hours at the beginning of the year or in equal installments; (4) employees may lose accrued but unused paid sick leave at the end of a calendar year or benefit period unless the ordinance specifies carryover (Wilmington allows limited carryover).

Federal FMLA exceptions include: (1) employers with fewer than 50 employees are not covered; (2) federal, state, and local government employees may have different protections under separate laws; (3) union employees covered by collective bargaining agreements may have different leave entitlements negotiated separately; (4) FMLA does not require paid leave, only unpaid leave; (5) employees must have worked for the employer for at least 12 months to be eligible.

Step 1: Document Everything. If you work in Wilmington or Newark, keep detailed records of all requested paid sick leave days, the dates requested, whether the request was granted or denied, and any relevant communications (emails, texts, notes). Document your work schedule showing the hours you worked, which establishes your accrual rate. Take screenshots of company policies or any written materials about sick leave. If your employer failed to provide the legally required amount at the start of the year or denied accrual, note the dates and amounts. Create a personal timeline of events.

Step 2: Review Your City's Ordinance and Company Policy. If you work in Wilmington, consult Wilmington City Code § 26.509 line-by-line; if in Newark, consult Newark City Code § 25-4.2. Request a copy of your employer's paid sick leave policy in writing (email preferred for documentation). Compare your employer's actual practice against the ordinance requirements. Calculate how many hours you should have accrued based on hours worked. Determine whether your employer meets the 15-employee threshold—if not, the ordinance does not apply, but document this for clarity.

Step 3: File an Internal Complaint. Send a written complaint to your employer's HR department or management, referably by email. State clearly: (1) that you work in [Wilmington/Newark] and the ordinance applies; (2) the specific violation (e.g., "I accrued 50 hours but was only paid 40 hours," or "I requested sick leave and was denied without justification"); (3) the dates involved; (4) what remedy you seek (back pay for denied sick leave, wages owed for unpaid accrued leave, etc.). Keep a copy of this complaint. Give the employer a reasonable time to respond—typically 5-10 business days. This step is not legally required but creates internal documentation and sometimes prompts corrective action.

Step 4: File a Complaint with the Municipality or State. Wilmington: Contact the City of Wilmington Department of Labor (phone: 302-576-2360 or file online through the city website). Newark: Contact the City of Newark with your complaint; contact information is available through the city clerk's office (phone: 302-366-7000). If you work in a different Delaware municipality or unincorporated area, contact the Delaware Department of Labor, Division of Wage and Hour Enforcement (phone: 302-761-8000; website: dnrec.delaware.gov/labor/). Provide your complaint form with: your name, contact info, employer name and address, a detailed description of the violation, dates, amounts owed, and copies of supporting documents. There is no statutory filing deadline for state complaints, but file as soon as practicable after the violation occurs. The complaint is typically filed free of charge.

Step 5: Investigation and Resolution. The investigating agency will contact your employer and request records of your accrual and paid sick leave usage. The investigation typically takes 30-60 days. You may be asked to provide additional evidence or to participate in a meeting. The agency will determine whether a violation occurred. If so, the employer is ordered to pay any back wages owed plus accrued leave. Some municipalities have penalty provisions for willful violations. If the employer does not comply voluntarily, the agency may pursue enforcement through administrative proceedings or referral to the state attorney general.

Step 6: Consult an Employment Attorney if Needed. If the amount in dispute is substantial (over $1,000 in back wages), your employer retaliates against you for complaining, or the agency denies your complaint and you believe it was wrongly decided, consult an employment law attorney licensed in Delaware. Many offer free initial consultations. An attorney can advise you on whether you have a retaliation claim, whether you should appeal an agency decision, or whether filing a private lawsuit is viable. In Delaware, private actions for wage violations are possible but less common than administrative complaints; an attorney can assess your options. Look for attorneys specializing in wage and hour law or employment law.