Big Legislative Takeaways for Delaware

Saturday June 30 (and into the wee hours of Sunday July 1) saw the end of the fiscal year and with it came midnight and last minute (literally) deals in the Delaware General Assembly. Here were some of the biggest takeaways that will affect employment law:

Sexual Harassment

House Bill 360, which had a substitution and a last minute amendment, has finally been passed. We wrote previously about this bill, which differs slightly, but significantly, from the original bill that was proposed. For a more in-depth analysis of this bill that will take effect January 1, 2019, please read our article here.

Minimum Wage Increase

In our article a few weeks back, we talked about how Washington, D.C. is phasing out their two-tiered minimum wage system. In that article, we discussed how back in March, Delaware voted to keep minimum wage, both regular and for tipped workers, where it is.

But in this last legislative push, a bill to increase the minimum wage from $8.25 to $9.25 over the next two years was passed. The minimum wage will have its first raise to $8.75 on January 1, 2019. Advocates for minimum wage workers were pleased with the outcome, but many who oppose the bill have warned that this could mean that they will have to hire fewer workers.

Furthermore, a deal was struck between Democrats and Republicans to keep a “training” wage and a “youth” wage for new and young workers. This shall be “not more than $0.50 less than the minimum wage rate.” And the tipped minimum wage ($2.23), which has not been raised in years, will still remain at its current rate.

Parental Leave

In an effort to attract more workers to Delaware, the General Assembly passed a bill that gave full-time employees in Delaware school districts who have been working there for at least one year, as well as full-time employees working for the State for at least one year 12 weeks of paid leave “upon the birth of a child of the employee, or upon the adoption by the employee of a child who is 6 years of age or younger.”

Before, workers had to use their accumulated sick leave when they wanted to go on maternity or paternity leave. The move comes as Governor Carney is attempting to attract new workers to Delaware to replace a large portion of state workers who are approaching retirement.

IVF Procedures

Sections 3342 (Health Insurance Contracts) and 3556 (Group and Blanket Health Insurance) of Title 18, having to do with insurance in the State of Delaware, both received updates. The Delaware House passed Senate Bill Number 139 (SB139), by a margin of 29 yes’s and 2 no’s, on June 7, 2018. The bill will go into effect once Governor Carney signs it.

This bill requires Delaware employers to cover fertility care services, including in vitro fertilization (“IVF”) procedures, as well as several other medically recognized methods of aiding women trying to conceive. Section 3556 includes a provision that, “Employers who self-insure or who have fewer than 50 employees are exempt from the requirements of this subsection.” But otherwise, the bill aims to provide financial support for families trying to have a child who are unable to do so without other measures. The bill states that fertility coverage must be extended to, “covered individuals, including covered spouses and covered non spouse dependents, to the same extent as other pregnancy-related benefits.”

The description of the bill states that 1 in 8 couples trying to conceive struggle with infertility, and 3 out of 4 of those couples never receive the help they need due to financial constraints. “1 IVF cycle can cost between $15,000 and $25,000 and, on average, it takes 2 to 3 cycles to achieve pregnancy,” the description says. This bill, too, should attract younger workers to Delaware.

Marijuana

A bill to legalize recreational marijuana lost by four votes on June 27. Senators Helene Keely and Margaret Rose Henry– who have been some of the biggest supporters of this measure and who also introduced Delaware’s medical marijuana laws and decriminalization of marijuana laws– will be retiring at the end of this session. The future of recreational marijuana is uncertain, but remains unchanged for now.

WARN Act

House Bill 409 passed on June 26 with 34 Yes votes, 3 No votes, and 3 voters absent. It will take effect 180 days after its enactment into law. HB409 will amend Part I, Chapter 19. This Act seeks to have employers give advanced warning of “at least 60 days” to the Department of Labor Division of Employment and Training before they conduct “mass layoffs, plant closings, or relocations.” They hope that by doing this, DOL will be better prepared to assist large quantities of workers with training, benefits, and other services in order to help them return quickly to the work force. This Act works with and goes beyond the federal Worker Adjustment and Retraining Notification Act (“WARN Act”).

There were two amendments to HB409, the first was struck, the second passed. The second amendment changes the definition of an Employer from 50 or more to 100 or more employees. The amendment changes definition of Mass layoff to have updated triggers for notice. The amendment permits notices of layoff to be hand delivered. Finally, the amendment clarifies that construction and related employers “are included in the exceptions to compliance with the notice requirements.” The difference between the two amendments was changing “removes triggers” to “changes triggers.”