(a) (1) Except as provided under subsection (e) of this section, an employer may apply to the Department for approval to meet the employer’s obligations under this chapter through a private plan. To be approved as meeting an employer’s obligations under this chapter, a private plan must do all of the following:
a. Provide 1 or more of the following:
1. Family caregiving leave to a covered individual for the reasons under § 3702(a)(2) and (a)(4) of this title for the maximum number of weeks in a benefit year required under § 3703(a)(2) of this title.
2. Medical leave to a covered individual for the reasons under § 3702(a)(3) of this title for the maximum number of weeks in a benefit year required under § 3703(a)(2) of this title.
3. Parental leave to a covered individual for the reasons under § 3702(a)(1) of this title for the maximum number of weeks in a benefit year required under § 3703(a)(1) of this title.
b. Allow a covered individual to take, in the aggregate, the maximum number of weeks of covered leave in a benefit year or 24-month period as required under § 3703(a) and (c) of this title.
c. If family caregiving leave is provided, allow family caregiving leave to be taken for all purposes specified under § 3702(a)(2) and (a)(4) of this title.
d. If family caregiving leave is provided, allow family caregiving leave under § 3702(a)(2) and (a)(4) of this title to be taken to care for any family member.
e. If medical leave is provided, allow medical leave under § 3702(a)(3) of this title to be taken by a covered individual with any serious health condition.
f. Provide a wage replacement rate during all covered leave of at least the amount required under § 3704(a)(1) of this title.
g. Provide a maximum weekly benefit during all covered leave of at least the amount specified under § 3704(a)(3) of this title.
h. Provide a minimum weekly benefit during all covered leave of at least the amount specified under § 3704(a)(2) of this title.
i. Allow covered leave to be taken intermittently or on a reduced schedule as authorized under § 3706 of this title.
j. Impose no additional conditions or restrictions on the use of covered leave beyond those explicitly authorized by this chapter or regulations issued under this chapter.
k. Allow an employee covered under the private plan who is eligible to take covered leave under this chapter to take covered leave under the private plan.
l. Provide that the cost to employees covered by a private plan is not greater than the cost charged to employees under the State program.
m. Provide an internal administrative review process and notice to employees of the option to appeal a final determination of the private plan to the Family and Medical Leave Insurance Appeal, consistent with § 3711 of this title.
(2) For a private plan to be approved as meeting an employer’s obligations under this chapter, the private plan must also comply with all of the following:
a. If the private plan is in the form of self-insurance, the employer must furnish a bond running to the State, with a surety company authorized to transact business in this State as surety, in a form as may be approved by the Department and in an amount as may be required by the Department. This paragraph (a)(2)a. does not apply to public employers.
b. Provide for all eligible employees throughout their period of employment.
c. If the private plan provides for insurance, the policy must be issued by an admitted insurer, as defined under § 1904 of Title 18.
d. Submit a certification to the Department, in a form regulated by the Department, certifying that the plan meets the obligations of this chapter
(3) The Department must accept applications for approval of an employer’s use of a private plan on a rolling basis, with effective dates of January 1, April 1, July 1, or October 1.
(b) An employer may provide all family and medical leave coverage through an approved private plan or may provide 1 or more of medical leave coverage, family caregiving leave coverage, or parental leave coverage using an approved private plan and provide the remaining coverage not provided through an approved private plan using the State program.
(c) The Department may withdraw approval for an employer’s use of a private plan granted under subsection (a) of this section when terms or conditions of the plan have been violated. The Department may withdraw approval for an employer’s use of a private plan for any of the following:
(1) Failure to pay approved benefits.
(2) Failure to pay benefits timely and in a manner consistent with the State program.
(3) Failure to maintain an adequate security deposit.
(4) Misuse of private plan trust funds.
(5) Failure to submit reports to the Department as required by regulations adopted by the Department.
(6) Failure to comply with this chapter or the regulations adopted under this chapter.
(d) An employee covered by a private plan approved under this section retains all applicable rights under §§ 3707 and 3708 of this title.
(e) (1) Private benefits in existence on May 10, 2022, that the Department deems to be comparable to the Family and Medical Leave Program under § 3713 of this title qualify as a private plan under this chapter for a period of 5 years from the start of contribution payments under § 3705 of this title if the Department’s approval of private plans under this subsection would not adversely impact the solvency of the Fund.
(2) The Department may determine comparable value through consideration of factors including wage replacement, length of leave, interrelated benefits, eligibility criteria, or frequency of allowed leave.
(3) An employer seeking to qualify as a private plan under this subsection must notify the Department before January 1, 2024.
(4) a. An employer may appeal the denial of an employer’s application under this subsection to the Department within 30 days of the issuance of the determination.
b. The Secretary shall conduct hearings of appeals filed under paragraph (e)(4)a. of this section under the Administrative Procedures Act, Chapter 101 of Title 29, except that these hearings are exempt from the public meeting requirements of Chapter 100 of Title 29 to protect confidential health and privacy information.
c. A decision under paragraph (e)(4)b. of this section is final and binding, unless appealed to the Superior Court within 30 days of the date of the decision under Chapter 101 of Title 29.
(f) The Department’s denial of an employer’s application under subsection (a) of this section or withdrawal of approval for an employer’s use of a private plan under subsection (c) of this section is subject to the appeal process under § 3711 of this title.
(g) An employer that meets the employer’s obligations under this chapter through a private plan may provide benefits greater than those required under paragraph (a)(1) of this section.
(h) An employer that meets its obligations under this chapter through a private plan is not required to provide claim documentation to the Department unless the claim is the subject of an appeal, complaint, audit, or specific inquiry from the Department. If an employer uses the state plan to meet its obligations under this chapter, all mandatory lines of coverage as required under this chapter must be provided by the employer through the state plan.
(i) If an employer that meets its obligations under this chapter through a private plan voluntarily elects to provide coverage for any reason listed under § 3702(a) of this title that is not a required type of coverage for that employer due to having fewer than 25 employees, all the provisions of this chapter are applicable as if the employer were a covered employer, including the right of employees to appeal under § 3711 of this title.