COVID-19 Executive Order # 2020-23 & P.R. Department of Labor Opinion 2020-01

By: Angel Berberena, Esq.

March 16, 2020

On March 15, 2020, the Governor of Puerto Rico issued Executive Order # 2020-23 which, among other things, establishes a curfew for all citizens between 9:00 p.m. and 5:00 a.m.; a fourteen (14) day mandatory quarantine period for any person suspected of exposure to COVID-19 or with related symptoms; and the mandatory closing of all commercial establishments commencing on March 15, 2020 at 6:00 p.m. until March 30, 2020. In addition to commercial establishments, the complete closing of operations is extensive to shopping malls, movie theaters, clubs, concert halls, theaters, game rooms, casinos, amusement parks, gyms, bars and any other similar place where people conglomerate. The following business are excluded from the closing restrictions: food sale establishments that provide drive-thru, carry-out or delivery services; wholesalers; pharmacies; supermarkets; gas stations; banks or financial institutions; elderly care centers; and any business in the distribution chain of food, medicine, medical equipment or fuel.

On March 13, 2020, the Puerto Rico Department of Labor and Human Resources (PR DOL) published Opinion # 2020-01 (Opinion) to address legal and public concerns regarding employer-employee relationships because of the COVID-19 emergency. The Opinion restates that employers are legally and ethically required to provide a safe working environment. Consistent with that principle, employers should: (i) consider the best ways to prevent and stop the dissemination of COVID-19; (ii) be properly informed; (iii) comply with all provisions regarding the use of safety equipment in the workplace; (iv) reasonably prepare and act based on the information made available by the government; and (v) notify and include in their policies safety and health advisories issued by the authorities.

Other actions available to, or expected from, employers include:

• Taking reasonable take steps, including the preparation of a plan, to prevent the dissemination of COVID-19.
• Requiring employees not to report to work if they show symptoms of COVID-19 or have been exposed to the virus because of traveling to a high incident area.
• Taking measures to determine if an employee should remain in the workplace, this may include taking the employee’s temperature with his her consent.
• Inquiring about trips or visits to specific areas or possible contact with people that may pose a risk.
• Requesting a medical certificate before allowing an employee who had COVID-19 symptoms to return to work.
• Establishing remote work policies.
• Promoting the use of video and telephone conferences when possible.
• Establishing flexible or rotating work schedules to minimize employee exposure to COVID-19.

Actions available to employees:

• Employees may request in writing a change in schedule, number of hours, or workplace in accordance with Act No. 379-1948. In these situations, employers are required to respond to the petition as provided by Article 8 of Act No. 379-1948. Allowing the employee to work as requested or failure to adequately respond to the request, will be considered as consenting to the petition.
• The employee and the employer may agree on a special schedule to make up for time not worked during the workweek. Provided that the employee is not working more than twelve (12) hours per day or forty (40) hours per week.

Leave and benefits available to employees exposed to COVID-19:

• Sick leave for personal use. The employee may also use up to five (5) days of sick leave balance to care for an immediate family member or for people under his/her legal care.
• Vacation leave at the discretion of the employer.
• Any other leave provided by the employer.
• Compensation for exempt employees should not be affected. However, any full days taken may be debited from the leave bank.
• Catastrophic Medical Leave of up to six (6) days is available to qualified employees.
• Family Medical Leave Act is available to qualified employees.
• Should the employees need additional leave, they may request benefits under the non-occupational disability insurance (SINOT).
• In case of occupational contamination, employees may request worker’s compensation and leave as provided by the Corporation of the State Insurance Fund (Corporación del Fondo del Seguro del Estado).
• Unemployment benefits in case of full or partial closings.

Indefinite suspensions or suspensions exceeding three (3) months (i.e. suspension of work until the end of the emergency) will be considered a termination subject to the mandatory severance provisions of Act No. 80-1976.

In addition to general discrimination protections, employers may be exposed to retaliation claims under Act No. 115-1991 for any action taken against any employee that challenges or files a formal complaint against his/her employer because of violations to rights under the current emergency.

Due to the nature of this pandemic, the PR DOL calls for good judgment and empathy during these trying times. The PR DOL is also encouraging employers to provide additional benefits to their human resources as these are ultimately a company’s most important asset.

Do not hesitate to contact us should you need assistance in tailoring your business’ response to this crisis. Our Firm will remain available to all our clients. Our attorneys are monitoring actions by the Federal Government, the Commonwealth of Puerto Rico, and local municipalities as additional measures are put into place to mitigate and lessen the extent of this crisis. At Goldman Antonetti & Cordova LLC, we look forward to providing client-focused assistance on how to respond to current events to minimize negative effects on your business.

Goldman Antonetti & Cordóva, LLC stands ready to assist you and your business to adjust to Puerto Rico’s regulatory and legal changes. If you need further assistance in this area, please contact any of the following members of our firm (note that during this emergency, it will be easier for you to communicate with us through electronic mail, as provided below):

Disclaimer:

Although the information included in this document may concern legal issues, it is not a legal opinion or professional advice and clients shall not use it as such. We assume no responsibility or liability of any kind for any information contained herein, and we expressly disclaim all liability for any claim for damages arising from the use, reference to, or reliance on, such information. If legal or other expert assistance is required, the services of a competent professional should be sought.

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