19 Del. Admin. Code § 2007-9.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 2007-9.0 - Leaves

9.1 Merit & Non-Merit Executive Branch, Elected Offices, DOE, Courts and Legislative Organization Employees

9.1.1 Provided the employee files the STD claim no later than the 15th calendar day from the date of disability and abides by the employing organization's policy and procedures regarding attendance and calling out absent, the employee may continue to use available sick leave, annual leave, or a combination of these leaves to be paid until the STD claim is approved, if not approved by the exhaustion of the STD calendar day elimination period. Parental leave is required be used to cover the elimination period as of the birth of a child for eligible employees in lieu of earned sick leave, annual leave, compensatory time or donated leave until the STD claim is approved, if not approved by the exhaustion of the STD calendar day elimination period. Refer to Section 5.0 of this regulation for claim filing requirements.

9.1.1.1 If the claim is not in an approved status by the exhaustion of the calendar day elimination period due to reasons outside of the employee's control, such as the employee is totally incapacitated or has been involuntarily confined, the employing organization has discretion to pay the employee sick leave, annual leave, or a combination of these leaves until the employee's STD claim is approved. If the STD claim is approved, the employing organization must reconcile the employee's leave record.

9.1.1.2 At the discretion of the employing organization, employees who are appealing an STD determination and have not returned to work or whose STD claim is still under review by the DIP insurance carrier or the third-party administrator or the Appeals Administrator from the SBO or the Hearing Officer appointed by the SEBC, may be paid sick leave, annual leave, or a combination of these leaves until the STD claim is approved or extended. If the STD claim is approved or extended, the employing organization must reconcile the employee's leave record.

9.1.2 An employee may utilize sick leave, annual leave, compensatory time, or donated leave to supplement STD benefits to equal 100% of pre-disability base pay for a maximum benefit period of 182 calendar days. Parental leave is required to be used to supplement the STD benefit to equal 100% of pre-disability base pay for employees entitled to parental leave on the birth of a child. An employee may not use sick leave, annual leave or other leave in lieu of parental leave for the birth of a child to supplement the STD benefit. The employee can choose from the following 3 options:

9.1.2.1 Except those entitled to parental leave (Refer to subsection 9.1.1 of this regulation), the employee may choose to use available sick leave, annual leave, or other eligible leave consecutively starting on the first workday of the month to supplement the STD benefit with available leave until the leave is exhausted. The leave must be utilized consecutively rather than on specific dates of the employee's choosing in the month; or

9.1.2.2 Except those entitled to parental leave (Refer to subsection 9.1.1 of this regulation), the employee may choose to retain sick leave, annual leave, or a combination of these leaves and save it for payout at the time the employee becomes a LTD beneficiary or retires on a service pension. Parental leave does not accrue or cannot be donated to the Donated Leave bank or be donated to another state employee. An employee who ends employment before the end of the 12 month parental leave period will not be eligible for payment of unused parental leave; or

9.1.2.3 Except those entitled to parental leave (Refer to subsection 9.1.1 of this regulation), the employee may choose to save sick leave, annual leave, or a combination of these leaves for use when the employee returns to work from STD leave. Parental leave must be used within 12 months from the date of birth.

9.1.3 Employees applying for STD benefits must also apply for the FMLA and parental leave if eligible. Parental leave runs concurrently with FMLA and STD, as applicable. While on FMLA, employees may retain one week of sick leave and one week of annual leave. Sick leave and annual leave accruals that exceed the allowable one week of sick leave and one week of annual leave must be used as earned.

9.1.4 Except those entitled to parental leave (Refer to subsection 9.1.1 of this regulation), donated leave may be used to pay employees during the calendar day STD elimination period. However, regardless of whether a claim was filed with the DIP insurance carrier or third-party administrator, donated leave is not to continue following the calendar day elimination period until the employee's STD claim has been approved and the employee continues to be in an STD approved status. After approval of the employee's STD claim and while the employee remains in an approved STD status, the employing organization may apply donated leave retroactively to supplement the STD benefit payment.

9.1.5 Employees on parental leave, FMLA or donated leave must follow the rules that apply to those programs.

9.1.6 If an employee is otherwise eligible for holiday pay or a paid leave other than identified in 29 Del.C. § 5253(b)(4), the employee will be granted 100% pay on the day in question without a residual. Leave supplements will be calculated on a per pay basis.

9.1.7 Employees on approved STD may choose to use sick leave and annual leave earned each month in its entirety or to save the sick leave and annual leave for payout at the end of employment, beginning of LTD, or service pension. As of the birth of a child, employees on approved STD are required to utilize parental leave. Rules for parental leave, FMLA and donated leave take precedence.

9.1.7.1 Employees who exhaust annual and sick leave each month will accrue leave at 100% for the given month.

9.1.7.2 Employees who decide to save sick leave and annual leave will accrue leave at 75% for the given month.

9.1.8 If the employee is in a "no pay" status during the STD elimination period, sick leave and annual leave stops. The employee should receive sick leave and annual leave prorated for the portion of the month last worked and a prorated amount of sick leave and annual leave for the portion of the month in which STD benefits were received. Parental leave will be used to cover the elimination period as of the birth of a child and is a paid leave.

9.1.9 Merit employees remain subject to the provisions of Merit Rule 5.2.4 regarding annual leave carryover.

9.1.10 As of the exhaustion of the maximum STD benefit period, an employee, except those entitled to hazardous duty pay as defined in 29 Del.C. § 5916(e), 29 Del.C. § 5933(c) and (d), and 83 Del Laws c 325 section 30, and those working on a temporary reduced, alternate, light duty or part-time basis, will no longer be an employee of the State or its political subdivisions provided the employee has exhausted the FMLA entitlement or is not FMLA eligible. Employees entitled to hazardous duty pay as defined in 29 Del.C. § 5916(e), 29 Del.C. § 5933(c) and (d), and 83 Del Laws c 325 section 30 who exhaust the maximum STD benefit period will no longer be an employee of the State or its political subdivisions at the end of the entitlement to hazardous duty pay or parental leave, provided the employee has exhausted the FMLA entitlement or is not FMLA eligible and is not working on a temporary reduced, alternate, light duty or part-time basis. When employment ends, the employee will not be eligible for payment of unused. The employee has two options with respect to remaining sick leave and annual leave.

9.1.10.1 Escrow Sick Leave and Annual Leave: Before LTD benefits begin, the employee may make written request to the employing organization to escrow sick leave and annual leave for a maximum period of 6 months. If the member returns to full-time State employment in a benefit eligible position for 30 calendar days within the 6 month escrow period, the member's sick leave and annual leave balances will be restored. If the member does not return to State employment in a benefit eligible position, the escrowed sick leave and annual leave will be paid to the member based on the rules in place by the member's former employing organization.

9.1.10.2 Payout of Sick Leave and Annual Leave: The employee will be eligible to receive a payout of sick leave and annual leave based on the rules in place by the employing organization. If the member is subsequently rehired or reinstated by the State of Delaware into a benefit eligible position, the member's sick leave and annual leave balance will be 0 on the date of rehire or reinstatement.

9.1.11 Employees who supplement the STD benefit payment with sick leave, annual leave, compensatory time, parental leave, or donated leave may defer a portion of the supplement into the Deferred Compensation program. Employees may not defer a portion of the STD benefit payment to the Deferred Compensation program.

9.1.12 In accordance with Merit Rule 5.3.8, Merit employees who are injured on the job and approved for WC will not be charged with sick leave for any portion of the day of injury.

9.1.13 If an employee is in a no pay status during the STD elimination period, sick leave and annual leave accrual stops. The employee should receive sick leave and annual leave accrual prorated for the portion of the month the employee last worked and a prorated amount of sick leave and annual leave for the portion of the month in which the employee receives STD benefits. Refer to DIP FAQ's, for specific examples found on the SBO Website.

9.1.14 Merit employees accrue sick leave and annual leave equivalent to the total combined benefit and wage (STD, sick leave, annual leave, parental leave, or WC, donated leave and PIP, not to exceed 100% of pre-disability earnings) paid to the employee. Refer to DIP FAQ's, for specific examples found on the SBO Website.

9.2 DOE, School District, Charter School and Higher Education Employees

9.2.1 Provided the employee files the STD claim no later than the 15th calendar day from the date of disability and abides by the employing organization's policy and procedures regarding attendance and calling out absent, the employee may continue to use available sick leave, annual leave, or a combination of these leaves, to be paid until the STD claim is approved, if not approved by the exhaustion of the STD calendar day elimination period. In accordance 14 Del.C. § 1333 (d), parental leave runs concurrently with the rights and benefits available under FMLA and STD in accordance with 29 Del.C. § 5253 for the birth of a child. Parental leave will be paid to eligible employees to cover the STD calendar day elimination period upon the birth of a child and to supplement the STD benefit.

9.2.1.1 If the STD claim is not in an approved status by the exhaustion of the calendar day elimination period due to reasons outside of the employee's control, the employing organization will have discretion to pay the employee sick leave, annual leave, or a combination of these leaves until the employee's STD claim is approved. If the STD claim is approved, the employing organization must reconcile the employee's leave record.

9.2.1.2 At the discretion of the employing organization, employees who are appealing an STD determination and have not returned to work or whose STD claim is still under review by the DIP insurance carrier or third party administrator or the Appeals Administrator from the SBO or the Hearing Officer appointed by the SEBC, may be paid sick leave, annual leave, or a combination of these leaves, until the STD claim is approved or extended. If the STD claim is approved or extended, the employing organization must reconcile the employee's leave record.

9.2.2 An employee may utilize sick leave, annual leave, compensatory time, or donated leave (if applicable) to supplement STD benefits to equal 100% of pre-disability base pay for a maximum benefit period of 182 calendar days. Parental leave will be used to supplement the STD benefit to equal 100% of pre-disability base pay for employees entitled to parental leave on the birth of a child. An employee may not use sick leave, annual leave, or other leave in lieu of parental leave for the birth of a child to supplement the STD benefit.

9.2.3 Employees on parental leave, FMLA or donated leave must follow with the rules that apply to those programs.

9.2.4 After the exhaustion of the maximum STD benefit period, an employee, except those entitled to hazardous duty pay as defined in 29 Del.C. § 5916(e), 29 Del.C. § 5933(c) and (d), and 83 Del Laws c 325 section 30, and those working on a temporary reduced, alternate, light duty or part-time basis, will no longer be an employee of the State or its political subdivisions provided the employee has exhausted the FMLA entitlement or is not FMLA eligible. Employees entitled to hazardous duty pay as defined in 29 Del.C. § 5916(e), 29 Del.C. § 5933(c) and (d), and 83 Del Laws c 325 section 30 who exhaust the maximum STD benefit period will no longer be an employee of the State or its political subdivisions at the end of the entitlement to hazardous duty pay or parental leave, provided the employee has exhausted the FMLA entitlement or is not FMLA eligible and is not working on a temporary reduced, alternate, light duty or part-time basis. When employment ends, the employee will not be eligible for payment of unused parental leave. The employee has two options with respect to remaining unused sick leave and annual leave.

9.2.4.1 Escrowed Sick Leave and Annual Leave: Before LTD benefits begin, the employee may make a written request to the employing organization to escrow unused sick leave and annual leave for a maximum period of 6 months. If the member returns to full-time State employment in a benefit eligible position for 30 calendar days within the 6 month escrow period, the member's sick leave and annual leave balances will be restored. If the member does not return to State employment in a benefit eligible position, the escrowed leave will be paid to the member based on the rules of the member's former employing organization.

9.2.4.2 Payout of Sick Leave and Annual Leave: The employee will be eligible to receive a payout of unused leave based on the rules of the employing organization

9.2.5 Employees who supplement the STD benefit payment with sick leave, annual leave, compensatory time, parental leave, or donated leave may defer a portion of the supplement into the Deferred Compensation program. Employees may not defer the portion of the STD benefit payment to the Deferred Compensation program.

19 Del. Admin. Code § 2007-9.0

16 DE Reg. 1004 (03/01/13)
18 DE Reg. 79 (7/1/2014)
19 DE Reg. 78 (7/1/2015)
20 DE Reg. 70 (7/1/2016)
22 DE Reg. 861 (4/1/2019)
28 DE Reg. 57 (7/1/2024) (Final)