Client Alert

by cstlaw

PUERTO RICO DEPARTMENT OF LABOR (“PRDOL”) PUBLISHES MODEL PROTOCOL TO PREVENT AND ADDRESS SEXUAL HARASSMENT COMPLAINTS IN THE WORKPLACE

On October 28th, 2022, the PRDOL published a model protocol to prevent and address sexual harassment complaints in the workplace. You can access the PRDOL’s model protocol here. This model protocol was prepared and disseminated by the PRDOL in response to a recent amendment to Act No. 17 of April 22, 1988 (“Act No. 17”), known as Puerto Rico’s Sexual Harassment Act, which, among other things, extended protection against sexual harassment to paid and unpaid interns and mandated that employers have protocols in place to address situations and complaints of sexual harassment in the workplace, while setting forth minimum standards that said protocols must contain. Employers can adopt the model protocol published by the PRDOL or prepare and disseminate their own which must, at a minimum, incorporate the standards established in the PRDOL’s model protocol. Likewise, employers that already have a protocol in place must ensure that it incorporates the minimum standards established in the recent legislation and contained in the PRDOL’s model protocol. Moreover, the Secretary of the PRDOL recommends employers that do not have a protocol in place to adopt the PRDOL model protocol on a temporary basis while they design and disseminate a protocol that addresses the needs of their particular industry, workforce and workplace, while containing the statutory minimum standards.

Below we summarize certain key aspects that you should be mindful of as it pertains to either the revision, adoption and/or creation of a sexual harassment protocol that is fully compliant with recent legislation and the PRDOL’s model protocol.

I. Protocol to address situations and complaints of sexual harassment must, at a minimum, include or provide the following:

1. A statement communicating that sexual harassment is illegal and expressing the company’s zero tolerance policy;
2. Legal basis for the protocol;
3. Definitions;
4. The person responsible for handling and investigating sexual harassment allegations or complaints;
5. Explanation of the process to report and file a complaint;
6. State who can file a complaint for sexual harassment, including the alternative to file a verbal, written or anonymous complaint;
7. Examples of prohibited conduct;
8. Actions to maintain the confidentiality of the complaint;
9. Anti-retaliation provision;
10. Description of the investigative process that follows a complaint for sexual harassment;
11. Measures that can be adopted for victim’s protection, as well as those who testify or collaborate in the investigation;
12. Legal remedies available for victims and the information of agencies that could assist them;
13. Include a complaint form for employees to report sexual harassment incidents;
14. Reference regarding local and federal provision related to sexual harassment.

II. Web Portal

Employers should be mindful that the recent legislation provides for the creation of a webpage (“hostigamientosexual.pr.gov”) where employees may file complaints of sexual harassment in the workplace, that will be addressed, investigated and adjudicated by the PRDOL and the Women’s Solicitor Office. Per a recent communication from the Secretary of the PRDOL, the portal’s availability will be announced soon. Notably, however, the PRDOL and recent legislation are silent as to how these virtual sexual harassment complaints will be notified to employers, if at all, so that employers may take immediate actions to address and correct situations of sexual harassment in the workplace.

If you have any questions or comments regarding these recent developments that impact the employment landscape or if you’d like assistance to revise or modify your practices and policies to ensure compliance with local legislation, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

by cstlaw

EFFECTIVE DATE OF 2022 LABOR REFORM IS FAST APPROACHING

Despite opposition from the Financial Oversight and Management Board (“Oversight Board”), Governor Pedro Pierluisi recently signed into law House Bill No. 1244, Act No. 41-2022 (“Act No. 41”) which amends various employment statutes and partially repeals the Labor Transformation and Flexibilization Act, (Act No. 4-2017 or Labor Reform of 2017). While only time will tell whether the Oversight Board will challenge its implementation or validity, it is important to beware of the relevant provisions of Act No. 41 as its 30-day effective date of July 20th, 2022 is fast approaching.

Succinctly, Act No. 41 partially repeals the Labor Reform of 2017 to reinstate statutory benefits to eligible employees and expands on certain rights and entitlements, as is the case with student workers and part-time employees. Act No. 41 tasks the Secretary of the Department of Labor to prepare the necessary rules and regulations for better compliance within 90 days from its enactment, or by September 18th, 2022.

Below we summarize certain key aspects that you should be mindful of in light of the July 20th effective date. Bear in mind that some of the provisions impact non-exempt employees while others are extensive to all employees in the private sector.

Employment Agreements

Note that whereas the Labor Reform of 2017 provided that in the event of ambiguity in an employment agreement, any interpretation would be guided by the intent of the parties, the law, the purpose of the relationship, productivity, the nature of the employment relationship, good faith and the customs and uses generally observed in the context of the relationship, Act No. 41 specifically provides that in the event of ambiguity in an employment agreement, such ambiguous language will be interpreted liberally in favor of the employee. As such, it is imperative that the language and provisions contained in employment agreements be clear and free of ambiguities.

Unjust Dismissal Act (Act 80) and Probationary Period

The key takeaways are that the definitions or examples of “just cause” contained in Article 2 are once again identical to those used prior to the enactment of the Labor Reform of 2017, the presumption of unjust dismissal favoring plaintiffs is reinstated, and that the formula to calculate severance pay was once again modified. Now, employees hired for an indefinite term and terminated without just cause before their 15th anniversary are entitled to an indemnity equivalent to 3 months’ pay plus an additional progressive indemnity equivalent to 2 weeks for each year of service. Those employees hired for an indefinite term and terminated without just cause after 15 years of service are entitled to an indemnity equivalent to 6 months’ pay plus an additional progressive indemnity equivalent to 3 weeks for each year of service. It’s also important to note that while the Labor Reform of 2017, through the introduction of Article 3-A to Act 80, attempted to provide clarity and uniformity to layoffs or terminations of employees as a result of economic reasons whenever employers had more than one facility or location, Act No. 41 repealed Article 3-A and reinstated the original Act 80 language that created confusion in terms of determining seniority of employees and requires employers to consider seniority of employees within the impacted occupational classifications depending on employer’s practice of transferring employees among facilities and the nature of employer’s human resources operation (integrated vis a vis independent).

The Probationary Period is reverted to a 3-month term for exempt and non-exempt employees, but automatic nature (no strict contractual requirements in place prior to Labor Reform of 2017) of probationary period is preserved. Considering that Act No. 41 is silent with respect to whether this amendment has any bearing on the probationary period of employees hired prior to the effectiveness of Act No. 41 (July 20th, 2022 for employers not considered micro, small or medium sized) – retroactive effect – the Secretary of the Department of Labor recently issued an opinion (No. 2022-01) stating that the provision contained in Act No. 41 shortening the probationary period to a 3-month term shall apply prospectively and automatically to employees on or after the effectiveness of Act No. 41. As stated above, Act No. 41 goes into effect on July 20th, 2022 for all employers not considered micro, small or medium sized, and on September 18th, 2022 for employers considered micro, small or medium sized.

Meal Period

Reverted to state of affairs prior to Labor Reform of 2017 as regards to limitations on when meal period may be enjoyed by non-exempt employees: cannot begin before the conclusion of the third hour nor after the commencement of the sixth consecutive hour of work. Additionally, non-exempt employees may enjoy their meal period between the 2nd and 3rd hour provided there is a written agreement between the employee and employer. For employees who don’t work more than 12 consecutive hours in a shift, the 2nd meal period may be waived provided the 1st meal period was enjoyed and a written agreement exists. Act No. 41 also eliminated provision that allowed waiver of meal period whenever shift did not exceed 6 hours.

Vacation / Sick Leave

With the exception of part-timers and employers with 12 employees or less, Act No. 41 reverted to state of affairs prior to the Labor Reform of 2017 in terms of monthly threshold (back to 115 hours from 130 hours per month) and accrual: 1 ¼ days of vacation leave per month and 1 day of sick leave. However, part-time non-exempt employees who work at least 20 hours a week but less than 115 hours per month, are now entitled to accrue ½ day of vacation and sick leave per month. For employers with 12 employees or less, non-exempt employees who work at least 20 hours a week but less than 115 hours per month will accrue ¼ days and ½ days of vacation and sick leave per month, respectively and ½ days of sick leave per month. Likewise, employees working for these same employers who work at least 115 hours per month will accrue ½ days and 1 day of vacation and sick leave per month, respectively.

Note that non-exempt employees hired prior to the effectiveness of the Labor Reform of 2017 (January 26th, 2017) who enjoyed higher vacation and sick leave accrual rates will continue to enjoy such greater rates provided they continue working for the same employer. Also note that upon written request by the non-exempt employee, the employer may liquidate accrued and unused vacation leave totally or partially.

Christmas Bonus

With regards to employees hired prior to the effectiveness of the Labor Reform of 2017, Act No. 41 essentially maintained the same statutory benefits (6% of the salary up to $10,000, capped at $600) provided the employee worked at least 700 hours from the period of October 1 to September 30 of the following year, while made adjustments and revisions to the formula for eligibility to receive a statutory annual Christmas Bonus. Likewise, employers with 12 employees or less – for more than 26 weeks from the period of October 1 to September 30 of the following year – are required to provide bonuses that are equivalent to 3% of an employee’s annual salary up to $10,000, capped at $300, provided the employee worked at least 700 hours in that time period.

For employees hired on or after the enactment of the Labor Reform of 2017, employers who employ more than 20 employees – for more than 26 weeks from the period of October 1 to September 30 of the following year – shall pay those employees who worked at least 700 hours during that time period a bonus equivalent to 3% of their salary up to a maximum of $600. Employers with 20 employees or less shall pay those employees who worked at least 700 hours during that time period a bonus equivalent to 3% of their salary up to a maximum of $300. Employers considered micro, small or medium-sized shall provide Christmas bonuses to employees who work 900 hours or more during the same time period.

Discrimination

Puerto Rico’s general antidiscrimination statute (Act 100-1959) is amended to include a rebuttable presumption that acts of discrimination were incurred in violation of Act 100 whenever they were perpetrated without just cause.

Students

Non-exempt employees who are high school, college or postgraduate students shall be paid twice their hourly rate for hours worked on a resting day, except if they work for microbusinesses or small- or medium-sized employers, in which case hours worked on a resting day shall be paid at time and a half.

If you have any questions or comments regarding these recent developments that impact the employment landscape, or if you would like assistance to revise or modify your practices and policies accordingly, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.

by cstlaw

PUERTO RICO GOVERNOR SIGNS “PUERTO RICO MINIMUM WAGE ACT”

On September 21, 2021, the Governor of Puerto Rico Pedro Pierluisi signed into law House Bill 338 which establishes the “Puerto Rico Minimum Wage Act” (hereinafter, Act No. 47). Said law declares as the public policy of the Commonwealth of Puerto Rico to adapt the minimum wage to the cost of living of Puerto Rican workers, based on the principle that no worker should live below poverty level. To enforce this public policy, Act No. 47 creates the Minimum Salary Evaluating Commission (hereinafter, “the Commission”), which is instructed to periodically review the Commonwealth’s minimum wage to adjust it to the increase in the cost of living of Puerto Rican workers. To this end, section 2.09 of Act No. 47 provides that the Commission will have the power to approve mandatory decrees dictating the adequate minimum wage, wage that, according to section 2.02 of Act No. 47, should never be lower than the federal minimum wage. Once approved, the minimum wage decrees shall be binding, and as such, per section 2.12 of Act No. 47, the Commission will not be able to reduce the minimum wage established through a previous decree approved under the provisions of Act No.47.

Thus, Act No. 47 promulgates a staggered increase in the state minimum wage, providing that the state minimum wage in Puerto Rico shall prevail as long as it is higher than the federal minimum wage. Pursuant to section 2.01 of Act No. 47, the provisions of the federal legislation and regulations regarding the payment of the minimum wage, what constitutes work hours, which employees and occupations are exempt from the minimum wage, and what constitutes hours or time of work will be recognized when applying the state minimum wage. According to section 2.02 of Act No. 47, the staggered increase in the minimum wage will begin on January 1, 2022, when the new state minimum wage will consist of $8.50/hr. Likewise, Act No. 47 provides that on July 1, 2023, the minimum wage will increase to $9.50/hr. and to $10.50 on July 1, 2024, subject to the Commission’s mandatory decree.

While the salary increases prescribed in Act No. 47 do not apply to the employees indicated in the
preceding paragraph, section 2.11 of Act No. 47 enables the Commission to establish special
mandatory decrees applicable to some of those employees, only in the following cases and under
the following terms:

• The Commission is authorized to establish a special mandatory decree for the so- called “Administrators,” “Executives,” and “Professionals” as such terms are defined in Regulation No. 13 of the Minimum Wage Board.
• The Commission is ordered to establish a special mandatory decree for agricultural workers, on or before July 1, 2022, including a decree for those excluded from the FLSA provisions.
• The Commission is ordered to establish a special mandatory decree for tipped employees, as such term is defined in the FLSA.

In general, section 3.01 of Act No. 47 precludes the application of this law’s dispositions to employees of the United States Government, employees of the government of the Commonwealth of Puerto Rico, municipal government employees, except for agencies or instrumentalities of the Commonwealth that operate as businesses or private companies. Similarly, the provisions of Act No. 47 will not apply to employees covered by a collective bargaining agreement between a labor organization and an employer, provided that their salary is equal to or greater than that established under the provisions of Act No. 47.

Section 3.04 of Act No. 47 recognizes a cause of action for employees who receive a compensation less than what they are entitled to under this law, a collective bargaining agreement or an employment contract. Employees may collect the difference owed through legal action, plus an amount equal to such difference owed as additional compensation, and the costs, expenses, interests, and legal fees. Section 3.05 of Act No. 47 states that a person that no longer has a working relationship with the employer may file a complaint during a term of five (5) years beginning on the date of termination. If the employee files a complaint while working for the employer, the claim will include the employee’s wages for the last five (5) years prior to filing the action.

If you have any questions or comments regarding these recent developments that impact the employment landscape, or if you would like assistance to revise or modify your practices and policies accordingly, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.

by cstlaw

Puerto Rico Department Of Labor Publishes Guidelines To Address Workplace Harassment / Bullying (“Acoso Laboral”) In The Private Sector In Compliance With Act No. 90-2020

On February 3, 2021, the Puerto Rico Department of Labor and Human Resources (hereinafter, the “PRDOL”) approved the Guidelines on Workplace Harassment / Bullying (“Acoso Laboral”) in the Private Sector in Puerto Rico (hereinafter, the “Guidelines”). These Guidelines were adopted in compliance with the mandate included in Article 9 of Act No. 90-2020, known as the “Act to Prohibit and Prevent Workplace Harassment in Puerto Rico” (hereinafter, “Act No. 90”), which instructs the PRDOL to adopt uniform guidelines that guide and assist private sector employers in the adoption and implementation of protocols against workplace harassment. For our Client Newsletter regarding Act No. 90 please click on this link. Employers will have 180 days from the approval and publication of the Guidelines, or until August 2nd, 2021, to adopt, implement, and publish the protocols in their workplaces.

What is and what isn’t workplace harassment

While the Guidelines, similar to Act No. 90, provide that the determination of whether certain conduct is constitutive of workplace harassment will depend on the totality of the circumstances and the facts proven in each particular case, Article V of the Guidelines clarifies that, pursuant to the definition of workplace harassment, the conduct must meet all of the following nine elements in order to be considered workplace harassment / bullying: (i) ill-intentioned or malicious; (ii) unwanted by the employee; (iii) repetitive and abusive; (iv) arbitrary, unreasonable and/or capricious; (v) verbal, written and/or physical; (vi) repetitive (be it by the employer, agents, supervisors or employees); (vii) unrelated to the employer’s legitimate business interests; (viii) infringes upon employees’ constitutionally protected rights, such as the right to protection against abusive attacks on their honor, dignity, reputation and private/family life, and employees’ right to be protected from risks to their health or personal integrity in their workplace; and (ix) must have created an environment in the workplace that is intimidating, humiliating, hostile and offensive, such that a reasonable person will not be able to perform their duties in a normal manner.

While Article 8 of Act No. 90 lists examples of behavior constitutive of workplace harassment, the Guidelines make it clear that such conduct must be considered in light of the definition of workplace harassment. As such, even if each one of the actions listed in Article 8 by itself meets the majority of the elements of the definition, the behavior will not be considered workplace harassment if it is deemed an isolated incident and not repetitive in nature. Furthermore, while some of the examples of behaviors considered to be workplace harassment entail that the conduct be perpetrated in public or in the presence of co-workers, actions or behavior perpetrated in private or in the absence of co-workers could, if all elements of the definition are present, be considered workplace harassment.

The Guidelines underscore that for the behavior or conduct to be considered workplace harassment it must be unrelated to the employer’s legitimate interests. Reasonable acts undertaken to encourage the proper and normal operation of a business, even if uncomfortable, unfriendly, or not to the employee’s liking, are not considered behavior or conduct constitutive of workplace harassment under Act No. 90, regardless of whether they are isolated or repetitive in nature. These generally pertain to an employer’s reasonable, legitimate and non-discriminatory actions tied to its operations and day-to-day functioning, such as implementing and enforcing disciplinary measures, enforcing policies, metrics, standards, confidentiality provisions and other contractual or statutory rights and obligations, requiring additional work or duties whenever necessary, evaluating employees’ performance, and terminating employees (for cause or upon expiration of fixed term contracts).

Exhaustion of internal and alternate dispute resolution procedures

Pursuant to Article 10 of Act No. 90, the employer must adopt an internal procedure and protocol to address allegations of workplace harassment. This protocol need not be far from those already established for other similar claims, such as, for example, the procedures to address allegations of sexual harassment or the protocol to handle domestic violence situations in the workplace. At minimum, the protocol must adopt an internal remedies and mediation scheme where the employee must, in first instance, communicate allegations of workplace harassment internally to allow their employer an opportunity to learn about the situation, investigate, and take the corresponding and necessary measures, if applicable. If the internal process is unsuccessful, the employee may then go to the Judicial Branch’s Bureau of Alternate Methods for Conflict Resolution (“Negociado de Métodos Alternos para la Solución de Conflictos de la Rama Judicial”). If, after receiving orientation, the parties do not accept the results of mediation or the mediator does not recommend the same, only then may an employee file a suit before the Puerto Rico Court of First Instance where they must provide evidence of having exhausted both internal and alternate dispute resolution procedures. Employees have one year to file suit from the moment they felt subjected to workplace harassment.

Minimum content of employer’s policy to prevent and manage situations of workplace harassment / bullying

The Guidelines establish that an employer’s internal policy or protocol serves a dual purpose. Namely, the protocol will provide orientation to employees on workplace harassment in order to promote a safe workplace free from harassment and bullying, while at the same time establishing the internal procedure to handle and investigate claims of workplace harassment. Also, while the Guidelines state that the handling of workplace harassment complaints can be adjusted to fit the administrative and human resources realities of each employer – and may even be integrated in existing policies and protocols, it is important to note that certain minimum principles must be included in the employer’s policy or protocol to prevent and handle situations of workplace harassment, namely: (1) a declaration from the employer about its policy against workplace harassment consistent with Act No. 90 while including its posture about the environment that should permeate the workplace; (2) examples of behavior or actions that could constitute workplace harassment; (3) disciplinary actions, sanctions or consequences (including personal civil liability) of engaging in conduct or behavior constitutive of workplace harassment; (4) guidelines for supervisors and managers in the prevention and identification of situations that could constitute workplace harassment; (5) anti-retaliation and confidentiality provisions; (6) the procedure for filing internal complaints of workplace harassment, mentioning the individual(s) (including alternates) responsible for receiving such complaints, while specifying whether the complaints must be verbal, written, or both (given the language of Act No. 90 and the employer’s potential civil liability if it fails to take immediate corrective measures whenever its supervisors or agents knew or should have been aware of the behavior constitutive of workplace harassment, it is highly recommended that employers investigate all claims and take immediate corrective action whenever applicable); (7) the investigation procedure and its terms (crucial given Act No. 90’s employer immunity provision when employers demonstrate that they took immediate and appropriate measures and the employee failed to take advantage of the employer’s corrective and preventive measures); (8) the steps for the exhaustion of remedies and procedures provided by Act. No. 90 aside from the internal process, including prescriptive period to file suit; and (9) providing information as to how the employer will fulfill its duty to disseminate the protocol in the workplace and date of its adoption.

If you have any questions or comments regarding these recent developments that impact the employment landscape, or if you would like assistance to revise or modify your practices and policies accordingly, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.

by cstlaw

New Covid-19 Relief Bill Provides For Voluntary Extension Of FFCRA Benefits, Refundable Tax Credits Continuation, And Expansion Of Unemployment Benefits

As a result of the signing of the $900 billion pandemic relief bill (hereinafter, the “Relief Bill”) by the President of the United States on December 27, 2020, employers who choose to provide voluntary extension of leave benefits under the Families First Coronavirus Response Act (“FFCRA”) will be entitled to refundable tax credit continuation. Notably, however, the requirement that employers provide paid sick leave and expanded family and medical leave under the FFCRA expired on December 31, 2020.

Optional FFCRA Tax Credits Extended Through March 31, 2021

The Relief Bill did not extend the FFCRA requirement where covered employers must provide Emergency FMLA Leave and Emergency Paid Sick Leave to qualifying employees. As a result, after December 31, 2020, FFCRA-covered employers may voluntarily provide continued leave benefits to employees who did not exhaust their FFCRA allotment prior to said date and may allow them to enjoy the unused leave if such leave would otherwise be covered by the FFCRA. To incentivize employers to continue providing leave benefits on a voluntary basis, the new dispositions provide for FFCRA-covered employers that elect to extend FFCRA-like benefits voluntarily, to continue to reap the refundable dollar-for-dollar payroll tax credit associated with the program through March 31, 2021.

Extension of Unemployment Benefits

The Relief Bill expanded unemployment insurance benefits available to workers through the CARES Act Unemployment Programs through the Federal Pandemic Unemployment Compensation Program (“FPUC”). FPUC allows individuals who are currently unemployed and receiving any unemployment benefits, to receive an additional $300 in benefits for each week of unemployment between December 26, 2020 and March 14, 2021. Also, the Relief Bill extends benefits under the Pandemic Emergency Unemployment Compensation (“PEUC”) Program, by providing for up to 24 weeks of additional unemployment benefits to eligible individuals who have exhausted the unemployment benefits available under Puerto Rico law. With the newest extension to 24 weeks, eligible recipients can now receive up to 50 weeks benefits between state programs and PEUC. These extended benefits are also available through March 14, 2021.

Likewise, the Relief Bill extends benefits under the Pandemic Unemployment Assistance Program (“PUA”) until March 14, 2021. After that date, new claimants will be unable to apply for PUA benefits, but individuals who were receiving PUA benefits and who have not exhausted their total 50 weeks of PUA as of that date will continue to receive benefits until April 5, 2021.

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

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.

by cstlaw

EEOC Releases Updated Guidance On Covid-19 Vaccinations And Employment Laws

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its ongoing COVID-19 guidance, providing answers to several common questions raised by employers with respect to the now-available COVID-19 vaccine. Specifically, the publication provides information to employers and employees about how mandatory COVID-19 vaccination policies interact with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). According to the guidance, employers may enforce mandatory COVID-19 vaccination policies without violating the referred laws, subject to compliance with certain restrictions and requirements under the ADA and Title VII.

Per section K of the EEOC guidance, the following matters should be considered by employers when implementing a COVID-19 vaccination program:

1. COVID-19 vaccination is not a “medical examination” under ADA. The EEOC guidance confirms that insofar as the administration of a COVID-19 vaccine is not a medical procedure or test that seeks information about an individual’s impairment or current health status, it is not considered to be a “medical examination” prohibited or limited by the ADA.

2. Pre-vaccination medical screening questions may implicate the ADA’s provision on disability-related inquiries. As pre-screening questions are likely to elicit information about a disability, the employer may ask these questions only when they are “job-related and consistent with business necessity.” To meet this standard, the EEOC explains that “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”

An exception to this requirement is recognized when the employer provides for a voluntary vaccination program. In such case, the ADA requires that the employee’s decision to answer pre-screening, disability-related questions must also be voluntary. If an employee chooses not to answer pre-screening questions, the employer may decline to administer the vaccine but may not retaliate against the employee for refusing to answer. The EEOC notes that another exception to the “job-related and consistent with business necessity” restriction exists when an employer-required vaccination program is administered by “a third party that does not have a contract with the employer, such as a pharmacy or other health care provider.”

3. The EEOC guidance reminds employers that the ADA requires employers to keep any employee medical information obtained during the vaccination program confidential.

4. Requiring proof of receipt of COVID-19 vaccination is not a disability-related inquiry under the ADA. Employers may request employees to provide proof of receiving a vaccine from another provider. However, the EEOC warns that “subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be job-related and consistent with business necessity.”

5. When employees indicate they are unable to receive a vaccination due to a disability the employer must show that an unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The EEOC advises that employers conduct an individualized assessment of the following four factors: “the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.”

6. Employers mandating vaccines must provide reasonable accommodation to employees who indicate they are unable to receive the vaccine due to sincerely held religious belief or practice, unless doing so would pose and undue hardship under Title VII of the Civil Rights Act. However, if an employer has an objective basis for questioning the nature or sincerity of a particular belief or practice, the employer would be justified in requesting additional information.

7. If an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief, the employer, in most circumstances, may lawfully exclude the employee from the workplace.

8. Neither administering a COVID-19 vaccine to employees nor requiring employee to provide proof of a vaccination is prohibited by the Genetic Information Nondiscrimination Act (GINA). Because the U.S. Centers for Disease Control and Prevention (CDC) has explained that mRNA vaccines, as is the case with certain COVID-19 vaccines, “do not interact with our DNA in any way,” the EEOC concludes that requiring employees to receive an mRNA vaccination is not prohibited or governed by GINA.

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

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.

by cstlaw

Employers’ Obligation To Provide Paid Voting Leave On Election Day Pursuant To The Puerto Rico Electoral Code Of 2020

On June 20, 2020, the Governor of Puerto Rico signed Act No. 58-2020, known as the “Puerto Rico Electoral Code of 2020” (“the Electoral Code”).

In general terms, the Electoral Code establishes the new rules, regulations, and guidelines for the participation of the citizens of Puerto Rico in the electoral process. Section 5.1 of the Electoral Code affirms the rights and prerogatives of voters. Included is the right of every voter who is self-employed or employed in the public or private sector to be able to request an early vote (which includes: voting by mail or at an early vote center with hours that do not conflict with the employee’s work-schedule). For an employee to be eligible to request early vote: (1) it must be foreseeable that the employee must work during the election day and hours, and (2) the vote must comply with the State Elections Commission (SEC) deadlines and regulations. For the current general election, the deadline to request an early vote was September 14th, 2020.

Notably, section 5.1 (17) provides that, if it is not foreseeable for the employee to request the early vote, employers must grant the employee a maximum of two hours with pay to vote during their working hours. As stated in the November 3, 2020 General Elections Proclamation, voting centers will remain open from 9:00 a.m. through 5:00 p.m. Accordingly, if an employee is scheduled to work on November 3rd (during the available voting hours) and they could not request an early vote and requests authorization to exercise their right to vote, the employer must grant such request for paid leave to vote pursuant to the Electoral Code. As stated above, the employee will have a maximum of two hours with pay to exercise their right to vote.

Please note that the Closing Law, which required employers in the private sector subject to its provisions to close during General Election Day, was repealed effective January 26, 2017 by the Labor Transformation and Flexibility Act. Accordingly, there is no legal prohibition mandating that employers close their operations on General Election Day.

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

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.

by cstlaw

Governor Of Puerto Rico Orders Secretary Of The Department Of Labor And Human Resources To Abstain From Charging Employers For The Unemployment Benefits Paid As A Result Of Covid-19

On September 11, 2020, Governor Vázquez signed Administrative Bulletin No. OE-2020-068 to order the Secretary of the Puerto Rico Department of Labor and Human Resources (PRDOL) to disregard and abstain from charging employers’ Unemployment Insurance (“UI”) reserve account for the benefits paid for unemployment claims as a result of the COVID-19 pandemic beginning on March 15th through December 26, 2020 (OE-2020-068).

The unemployment benefits administered by the PRDOL come, mostly, from employers’ annual UI tax contributions – which are maintained in the employers’ UI reserve account. The annual UI tax rate is determined by “the employers’ experience rating,” which essentially considers the taxable payroll, the amount paid into its UI reserve account, and unemployment claims filed against the employers’ UI reserve account. Accordingly, an employers’ UI annual tax rate can decrease or increase over time depending on its taxable payroll and/or the amount of unemployment claims filed against its UI reserve account.

Under normal circumstances, a surge in unemployment claims may impact an employer’s UI tax rate. However, considering that Puerto Rico remains under a state of emergency since March 12th due to the pandemic caused by COVID-19, and that an unprecedented increase in UI benefits claims have resulted, mostly, from employers that have been forced to close or reduce their operations as a result of multiple mandatory lockdown Executive Orders, the Administrative Bulletin No. OE-2020-068 seeks to avoid impacting employers’ UI tax rate for circumstances beyond their control.

To that end, OE-2020-068 considers that most unemployment claims charged to employers’ UI reserve accounts respond to compliance with the COVID-19 Executive Orders and are not attributable to employers. Also, in order to comply and access certain funds available by virtue of Section D, Emergency Unemployment Insurance Stabilization and Access Act of 2020, included in the First Coronavirus Response Act, Pub. L. 116-127, the Governor of Puerto Rico ordered the PRDOL to disregard and abstain from charging employers for unemployment benefits requested and paid to employees during the pandemic, for the workweek beginning on March 15th, 2020 up to the workweek ending December 26th, 2020 or another date established by the Federal Government. This action will allow employers to maintain an UI tax rate similar to what they paid prior to the pandemic, which will translate to a relief during the economic recovery process.

If you have any questions or concerns regarding the application of this new paid leave to your workforce or operations, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.

by cstlaw

Employers’ Obligations Pursuant To Executive Order No. Oe-2020-062 And The Department Of Health’s Preliminary Guideline Concerning Covid-19 And Return To The Workplace

On August 20, 2020, the Governor of Puerto Rico signed Executive Order No. OE-2020-062 to implement additional restrictions to combat the spread of Covid-19 in Puerto Rico (OE-2020-062). As it pertains to employers, OE-2020-062 provides that employers must continue to comply with the Plan submitted to the PROSHA division of the Puerto Rico Department of Labor and Human Resources. More importantly, employers that have a suspicious case or confirmed case of Covid-19 within their workforce, must immediately notify the Puerto Rico Department of Health to allow the Department of Health to commence any investigation and conduct contact tracing. Notifications must be sent to the following address: covidpatronos@salud.pr.gov. You can access the Form that must be completed and notified to the Department of Health by clicking on this link and downloading the Word document titled “Formulario para Patronos”.

Moreover, the Puerto Rico Department of Health published its Preliminary Guideline Concerning the Criteria that Should be Considered by Employers in Connection with the Return to Work by Employees with Confirmed or Suspicious Covid-19 Cases (“Guía Preliminar Sobre los Criterios que Debe Considerar Todo Patrono al Regreso de un Empleado con Covid-19, Sospechoso o Confirmado”). The Guideline is an adaptation of the guidelines published by the Centers for Disease Control and Prevention (CDC).

Per the Department of Health’s Guideline, employers should actively observe/promote the following practices:

● Instruct their employees who are ill or exhibiting Covid-19-related symptoms to stay at home;
● Instruct those with symptoms related to Covid-19 to not return to work until they have complied with the criteria to suspend isolation;
● If an employee seems to be displaying symptoms related to Covid-19 or becomes ill at work, immediately separate said employee from other employees and send the ill employee home;
● If an employee feels well and is otherwise healthy but resides with a family member who has tested positive for Covid-19, they shall notify their supervisor and remain on quarantine until they meet the criteria to suspend or terminate quarantine.

Covid-19 symptoms include: (i) fever; (ii) chills; (iii) cough; (iv) difficulty breathing;(v) feeling tired or fatigued; (vi) body aches; (vii) headaches; (viii) loss of sense of taste or smell; (ix) nasal congestion; (x) sore throat; (xi) diarrhea; (xii) nausea.

According to the Guideline of the Department of Health, the following criteria must be met before an employee who has exhibited symptoms and tested positive for Covid-19 can suspend or terminate isolation:

● 10 days have elapsed since the onset of symptoms related to Covid-19;
● At least 24 hours have passed without the employee exhibiting fever (without the aid of fever-reducing medication); and
● Other symptoms (i.e., coughing, difficulty breathing) have improved. (“Otros síntomas (ej., tos, dificultad para respirar) han mejorado.”)

Those asymptomatic employees who obtained positive Covid-19 results in a molecular test may terminate isolation after 10 days from when they first tested positive for Covid-19 in a molecular test. However, if the employee develops any symptoms following a positive test result, then they shall follow the criteria for symptomatic employees on isolation described above.

If you have any questions or concerns regarding the application of this new paid leave to your workforce or operations, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.

by cstlaw

Puerto Rico Governor Signs Law To Prohibit And Prevent Workplace Harassment Or Bullying

On August 7, 2020, Puerto Rico Governor Wanda Vázquez-Garced signed into law House Bill 306, known as the “Act to Prohibit and Prevent Workplace Harassment in Puerto Rico” (hereinafter “Act 90-2020 or “the Act”). House Bill 306, which faced staunch opposition from the private sector, was originally introduced in January of 2017, but had been sitting idle at the Legislature until earlier this summer. This new statute, which went into effect immediately, applies equally to the public and private sectors, defines the term workplace harassment (“acoso laboral”) or bullying, establishes employer’s obligations and provides aggrieved employees with a civil cause of action against their employer and individuals responsible for perpetrating workplace harassment, among other things. Notably and with respect to employer’s obligations, the statute provides that it shall be every employer’s responsibility to take necessary measures to eliminate or substantially reduce the occurrence of workplace harassment or bullying. As such, all employers must adopt and implement internal policies to reduce or prevent workplace harassment, investigate all allegations of alleged workplace harassment or bullying, and impose the corresponding sanctions whenever applicable.

Prohibited workplace harassment or bullying

Act 90-2020 defines workplace harassment or bullying as repeated and unwanted actions, conduct or behavior that are malicious, abusive, arbitrary, unreasonable and/or capricious. Said actions, conduct or behavior can be verbal, written and/or physical, are repeated in nature and perpetrated by the employer, agents, supervisors or employees, and are unrelated to the employer’s legitimate business interests. Likewise, this prohibited conduct or behavior infringes upon the employees’ constitutionally protected rights, such as the protection against abusive attacks to their honor, dignity, reputation, and private/family life, among others. This conduct creates an environment that is intimidating, humiliating, hostile and offensive and not conducive for a reasonable person to perform their duties in a normal manner.
While Act 90-2020 provides that the determination of whether certain conduct or behavior constitutes workplace harassment or bullying will depend on the totality of the circumstances and shall be dealt with on a case-by-case basis, it nonetheless provides a non-exhaustive list of behaviors that are considered as constitutive of workplace harassment or bullying:

● injurious, defamatory, or damaging expressions about a person that are filled with profanity;
● hostile and humiliating comments about an individual’s professional incompetence that are made in the presence of others;
● unjustified termination threats made in the presence of co-workers;
● comments or jokes made in public directed at an employee’s physical appearance or choice of clothing;
● the imposition of functions or duties patently foreign to the employee’s regular duties, requirements that are openly disproportionate with regards to the work assigned and the drastic change of place or scope of work without any objective reason concerning the employer’s service or business, among other examples.

Similarly, the statute provides a non-exhaustive list of behaviors that shall not be considered constitutive of workplace harassment or bullying:

● acts aimed at enforcing legal disciplinary measures by supervisors over subordinates;
● employer’s affirmative actions to enforce manuals, policies or employment contracts;
● formulating regulations, policies or directives related to the operation, the maximize efficiencies and for purposes of evaluating employees’ performance;
● the request for additional chores or tasks whenever it is necessary for the continuation of services or to solve difficult situations related to the operation or services offered by the employer;
● employer’s affirmative actions aimed at enforcing legal obligations, duties, and prohibitions.

Civil cause of action

The Act provides that any person responsible for workplace harassment or bullying shall incur in civil liability and be obligated to pay the aggrieved employee an amount equal to double the damages suffered by the employee as a result of the prohibited conduct or behavior, which could amount to remedies in excess of those provided in discrimination and retaliation cases under local statutes, which are subject to monetary caps. Moreover, employers will be held liable for the actions of supervisors or employees that constitute workplace harassment or bullying if the employer, its agents or supervisors knew or should have known of said conduct, unless the employer can demonstrate that it took immediate and appropriate actions to remedy the workplace harassment and the employee unreasonably failed to act upon the employer’s preventive and corrective actions to avoid harm. This defense will not be available when the prohibited acts are perpetrated by the employer. Likewise, employers will be held liable for acts of workplace harassment or bullying perpetrated against their employees by third parties, such as vendors or contractors, if the employer, its agents or supervisors knew of should have known of said conduct and failed to take immediate and appropriate actions to remedy the situation.

Additionally, if workplace harassment or bullying occurs amongst employees of different employers (as may occur in business that use temporary employment services, subcontractors, private security personnel, among other examples), all employers will be responsible for investigating the matter and taking corrective measures, if any.

Among other things, please note that the statute recognizes the opposition, denouncement or participation in investigations related to workplace harassment or bullying as protected activity for purposes of Puerto Rico’s general anti-retaliation statute.

DOL Regulations and Employer’s Protocol

Pursuant to Act 90-2020, the Secretary of the Department of Labor and Human Resources and the Director of the Office of Administration and Transformation of Human Resources of the Government of Puerto Rico shall, within 180 days from the Act’s effective date, adopt uniform guidelines for the development of protocols that employers must implement to handle internal complaints related to workplace harassment or bullying. Likewise, employers must, within 180 days from the publication of the DOL’s uniform guidelines, adopt and implement internal protocols and communicate these among their workforce.

Exhaustion of Internal and External Remedies

Prior to filing a claim in court for alleged workplace harassment or bullying, employees must comply with the procedure and protocol to be adopted by the employer to address workplace harassment or bullying claims. Once the employee exhausts the employer’s internal protocol and a resolution is not reached, the employee must escalate the claim with the Bureau of Alternative Disputes Resolution of the Judicial Branch. If, however, after having been oriented, the parties do not accept mediation or the mediator does not recommend mediation, the employee may file a claim in court and submit evidence showing they exhausted the administrative procedure. At that stage, the employee may opt to process the case either through the ordinary civil procedure or the summary proceeding established by Act No. 2 of October 17, 1961.

Lastly, Act 90-2020 provides a 1-year statute of limitations which starts counting from the moment the employee first felt harassed.

If you have any questions or concerns regarding the application of this new paid leave to your workforce or operations, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.