On September 6, 2013, Delaware Governor Jack Markell signed into law the Volunteer Emergency Responders Job Protection Act, DEL. CODE ANN. tit. 19, § 1901 et seq. (H.B. 21), a measure designed to ensure that volunteer emergency responders are protected from discrimination by their private employers.
The Act protects "volunteer emergency responders," defined as volunteer firefighters, emergency medical technicians and fire police officers, from adverse employment actions resulting from their service as a volunteer. Specifically, the Act prohibits employers from terminating, demoting or otherwise disciplining a volunteer emergency responder who is absent from the workplace in connection with volunteer emergency services (e.g., acting as a volunteer emergency responder with respect to a Governor-declared State of Emergency for up to seven consecutive days, acting as a volunteer emergency responder with respect to a President-declared National Emergency for up to fourteen consecutive days or receiving treatment for injuries sustained performing volunteer emergency services). The Act applies to employers of ten or more employees, but in contrast to the definition of "employer" found elsewhere in Title 19 of the Delaware Code, does not clarify whether those employees must be located in Delaware. Accordingly, until this issue is clarified further by the courts, employers with at least ten employees in the aggregate nationwide (of which at least some are employed in Delaware) should comply with the Act.
The Act contains safeguards for private employers, imposing a duty on the volunteer emergency responder to notify the affected employer in accordance with the employer's existing policies that the employee may be absent from his or her place of employment in connection with the volunteer emergency services listed above. In addition, employers may seek a written statement certifying that the employee is in fact providing volunteer emergency services or receiving treatment. In the former case, the employee must furnish, within seven days of the employer's request, a written statement signed by the individual in charge of the volunteer department, which states that the employee responded to an emergency; the date and time of the emergency; and the date and time such employee completed his or her volunteer emergency activities. In the latter case, the employee must furnish, within five days of the employer's request, a written statement signed by a medical professional, which states that the employee was seen by such medical professional; the dates of treatment; and the estimated period of partial or total incapacity. In addition, employers are permitted to subtract from the employee's earned wages any time such employee is away from the workplace for events covered by the Act.
An employee who is wrongfully terminated, demoted or disciplined in violation of the Act may, within one year after the date of violation, bring an action for reinstatement, back pay, attorneys' fees and cost of suit.
The Act's protections do not apply to essential state employees, members of the armed forces and National Guard, employees of a hospital licensed pursuant to Delaware Code, Title 16, Ch. 10, and employees of public utilities who are necessary to maintain the integrity of networks, facilities or assist first responders. Moreover, employers with "substantially similar policies or rules that provide the same or substantially similar protections" are not governed by the Act.
Governor Markell also signed companion legislation H.B. 22, DEL. CODE ANN. tit. 19, § 720, which adds volunteer emergency responders to the categories of individuals protected from discrimination in employment. Specifically, the Act states:
It shall be an unlawful employment practice for an employer to discriminate in the hiring or discharging of an individual because of such individual's membership in a volunteer emergency responder organizer. This section shall not prevent an employer from taking otherwise lawful actions regarding hiring, discharging or requiring attendance of such individual.
Employers in Delaware may want to review their employment policies and handbooks to update them to address this development related to volunteer emergency responders. Additionally, employers should educate managers, supervisors and hiring personnel on the parameters of this new law.
If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
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