Puerto Rico Secretary of Labor Publishes Opinion Outlining Employers’ Obligation in Light of COVID-19 Pandemic
On March 13, 2020, the Puerto Rico’s Secretary of Labor published Opinion 2020-01, an important opinion outlining employers’ legal obligations to provide a safe work-environment to their employees. The Secretary stated that employees in Puerto Rico have a constitutional right to be protected against risks to their health and safety at work and, accordingly, employers should adopt practices to safeguard their employees against the transmission of COVID-19. For that reason, the Secretary directed Puerto Rico employers to have in place a plan to avoid the spread of the virus at work, including measures such as flexible work schedules and a work-from-home plans or policies. Employers should be watchful to publications made by the Centers for Disease and Control Prevention. Also, they must comply with OSHA regulations regarding safety for each particular industry.
Non-exempt employees may use available sick leave while infected with COVID-19, or otherwise exposed to a contagious disease. Moreover, Puerto Rico sick leave regulations further allow employees the right to use up to five days to take care of close relatives that are sick. Other available leaves to consider are: FMLA, the Special Leave for Catastrophic diseases, SINOT and Workers Compensation (State Insurance Fund) if employees are infected at work. Exempt (salaried) employees absent from work because of COVID-19 generally must receive their full salary in any week in which they have performed any work, provided that employers may deduct the absence to any available leave.
Given the national emergency, employers are authorized to require employees to stay at home if they show any symptoms related to COVID-19. More importantly, the Secretary issued a safe harbor policy allowing employers to inquire about employees’ recent travels and/or contact with persons that could have been infected with COVID-19, or their medical conditions, symptoms or impairments (typically forbidden under ADA). Because of the emergency, employers can also require employees with symptoms to provide a medical certificate before returning to work, to avoid exposing other employees to health risks.
Employees may ask for flexible and alternate-work-schedules to protect themselves from health risks. The 2017 Labor Reform requires that employers answer such inquiries timely and in writing, prioritizing petitions from employees that have the sole custody of their minor children. In case employees get laid off because of COVID-19, unemployment benefits are available.
Finally, the Secretary reminded employers that local laws prohibit retaliation against any employee for reporting an employer who has acted against federal or state law.