Puerto Rico’s Sick Leave Law Faces Major Changes With The Enactment Of Act No. 28-2018 & Act No. 60-2018

On January 27, 2018, Governor Ricardo Rosselló Nevares signed into law Act No. 60-2018, to amend Article 6 of Act No. 180-1998, better known as the “Puerto Rico Minimum Wage, Vacation, and Sick Leave Act.” This recent amendment to Act 180 seeks to prohibit employers in the private-sector from considering employees’ justified sick leave absences as criteria in performance reviews, compensation, promotion and/or disciplinary related decisions. The Legislature sought to remedy an apparent contradiction in granting employees the right to be absent from work for justified medical reasons, while allowing employers to penalize them for exercising that right.

Specifically, the amendment provides in its relevant part that insofar as employees have the right to make use of their sick leave in warranted or justified situations, employers may not establish and implement internal policies or norms that consider these justified absences for medical reasons as unjustified absences and subject the employees to disciplinary measures, or as criteria for assessing efficiency when evaluating performance and considering employees for raises or promotions.

While the preamble indicates that employers have mechanisms to verify whether employees are using sick leave adequately (e.g., investigating the veracity of medical certificates or seeking second opinions), the fact remains that Act 180 does not allow employers to request or require medical certificates for daily sick leave or medical-related absences that do not exceed two (2) days.

This being the case, we strongly encourage all clients to carefully examine the amendment as soon as possible and consider any potential changes to their internal policies and protocols, performance evaluation forms, and absenteeism policies to eliminate justified medical-related absences and avoid using them as a criterion for purposes of discipline and/or in considering employees for promotions or salary increases. Please note that this amendment went into effect immediately upon the Governor’s signature.

The Governor also signed into law Act No. 28-2018, which will become effective on February 20, 2018. Essentially, the bill provides all eligible employees, including temporary employees, an additional special paid leave of up to 6 days per year to care for their own “catastrophic illness.” Act No. 28 defines “catastrophic illnesses” as those listed in the Health Insurance Administration of Puerto Rico Special Coverage (HIAPRSC), which currently includes: (1) Acquired Immunodeficiency Syndrome (AIDS); (2) Tuberculosis; (3) Leprosy; (4) Lupus; (5) Cystic Fibrosis; (6) Cancer; (7) Hemophilia; (8) Aplastic Anemia; (9) Rheumatoid Arthritis; (10) Autism; (11) Post Organ Transplant; (12) Scleroderma; (13) Multiple Sclerosis; (14) Amyotrophic Lateral Sclerosis (ALS); and (15) Chronic Kidney Disease in stages 3, 4 or 5. Note the list is not exhaustive as it is dependent on the updates provided from time to time in the HIAPRSC.

Employees will be entitled to said leave after working for a period of at least 12 months and averaging 130 hours per month during that 12-month period. Current employees that already meet those requirements prior to the enactment of Act No. 28 (i.e. prior to January 21, 2018) may already use the 6-day special leave.

In addition to those requirements, Article 3 of Act No. 28 lists the following requirements, among others:

• Congruent with Act No. 60, employers may not use this special paid leave as a criterion for purposes of discipline and/or in considering employees for promotions or salary increases, reducing their hours, reclassifying their position, changing their shifts or taking any adverse employment action.
• The employee must have exhausted his/her regular sick leave, and the employer may not force the employee to use the special leave prior to exhausting the regular sick leave.
• The 6-day special paid leave may be used in each calendar (natural) year and may not be accrued or carried over to the next calendar year.
• There is no obligation to liquidate any unused special paid leave upon termination of employment.
• The use of this special paid leave will be considered “time worked” for purposes of accrual of all employee benefits.
• At the request of the employee, the employer must allow the use of the special paid leave either through split, flexible or intermittent schedules.

The employer may request a medical certificate from a healthcare professional that offers medical treatment for the “catastrophic illness”, certifying that the employee is indeed diagnosed with one of the catastrophic illnesses –as listed in the HIAPRSC– and continues to receive medical treatment. The request for medical information must comply with the Health Insurance Portability and Accountability Act’s (HIPAA) privacy and confidentiality protections.

Lastly, please be advised that the Secretary of the Department of Labor and Human Resources of Puerto Rico is authorized to investigate, receive and file complaints, and impose fines of up to $2,000 for violations of Act 28.

If you have any questions or comments or if you’d like our assistance to review or modify your practices, employment agreements and policies accordingly, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

Juan J. Casillas Ayala	(787) 523-3439	jcasillas@cstlawpr.com
Luis F. Llach-Zúñiga	(787) 523-3498	lllach@cstlawpr.com
Israel Fernández Rodríguez	787-523-3437	ifernandez@cstlawpr.com

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