§ 3702 — Eligibility for benefits; serious health condition; certification or documentation of leave

(a) Beginning 1 year after the start of contributions under § 3705 of this title, and subject to subsection (c) of this section, family and medical leave benefits are payable to a covered individual who meets 1 of the following:

(1) Because of a birth, adoption, or placement through foster care of a child, is caring for the child during the first year after the birth, adoption, or placement of the child.

(2) Is caring for a family member with a serious health condition.

(3) Has a serious health condition that makes the covered individual unable to perform the functions of the covered individual’s position.

(4) Has a qualifying exigency.

(b) In applying and construing serious health condition, consideration must be given to the application and construction given to serious health condition under the FMLA.

(c) (1) An employer or an approved private plan under § 3716 of this title shall collect and retain information from covered individuals verifying parental leave status, serious health condition, or qualifying exigency when a covered individual submits an application under this chapter. An employer shall require that a request for leave based on a serious health condition under paragraph (a)(2) or (a)(3) of this section be supported by a certification issued by the health care provider of the covered individual or of the family member of the covered individual, as appropriate. The covered individual shall provide, in a timely manner, a copy of the certification to the employer or an approved private plan under § 3716 of this title.

(2) A certification required under paragraph (c)(1) of this section is sufficient if it includes all of the following:

a. The date on which the serious health condition commenced.

b. The probable duration of the condition.

c. The appropriate medical facts within the knowledge of the health care provider regarding the condition.

d. A statement of the following, as appropriate:

1. For purposes of leave under paragraph (a)(2) of this section, a statement that the covered individual is needed to care for the family member who has a serious health condition and an estimate of the time that the covered individual needs to care for the family member.

2. For purposes of leave under paragraph (a)(3) of this section, a statement that the covered individual is unable to perform the functions of the covered individual’s position.

e. If the leave is to be taken intermittently or on a reduced leave schedule under § 3706 of this title for planned medical treatment, the dates on which the medical treatment is expected to be given and the duration of the medical treatment.

f. If the leave is to be taken intermittently or on a reduced leave schedule under § 3706 of this title for purposes of leave under paragraph (a)(2) of this section, a statement that the covered individual’s intermittent leave or leave on a reduced leave schedule is necessary for the care of the family member who has the serious health condition, or will assist in the family member’s recovery, and the expected duration and schedule of the intermittent leave or reduced leave schedule.

g. If the leave is to be taken intermittently or on a reduced leave schedule under § 3706 of this title for purposes of leave under paragraph (a)(3) of this section, a statement of the medical necessity of the intermittent leave or leave on a reduced leave schedule and the expected duration of the intermittent leave or reduced leave schedule.

(3) a. If the employer or an approved private plan under § 3716 of this title has reason to doubt the validity of a certification provided under this subsection, the employer or private plan may require, at the expense of the employer or private plan, that the covered individual obtain the opinion of a second health care provider designated or approved by the employer or private plan concerning any information certified under this subsection. A health care provider designated under this paragraph (c)(3)a. may not be employed on a regular basis by the employer, Department or private plan.

b. If the second opinion under paragraph (c)(3)a. of this section differs from the opinion in the original certification provided by the covered individual under this subsection, the employer or private plan may require, at the expense of the employer or private plan, that the employee obtain the opinion of a third health care provider designated or approved jointly by the employer or private plan and the covered individual concerning any information certified under this subsection. The third opinion is final and binding on the employer or private plan and the covered individual.

(4) a. The employer or an approved private plan under § 3716 of this title may require that the covered individual obtain subsequent recertifications on a reasonable basis.

b. The standards for determining what constitutes a reasonable basis for recertification may be governed by a collective bargaining agreement between the employer or private plan and a labor organization which is the collective bargaining representative of the unit of which the covered individual is a part if such a collective bargaining agreement is in effect.

c. Unless otherwise required by the covered individual’s health care provider, the employer or private plan may not require recertification more than once during a 30-day period and, in any case, may not unreasonably require recertification.

d. The employer or an approved private plan under § 3716 of this title shall pay for any recertification that is not covered by the covered individual’s health insurance.

(d) The employer or an approved private plan under § 3716 of this title shall require that a request for leave based on a serious health condition under paragraph (a)(2) of this section of a family member be supported by documentation demonstrating the nature and extent of the relationship.

Legislative History

83 Del. Laws, c. 301, § 1