April 9, 2020, Updated May 12, 2020
On April 9, 2020, Puerto Rico enacted into law House Bill No. 2428 (“Bill No. 2428”), now Act No. 37-2020, in response to the COVID-19 pandemic, to establish a special paid sick leave for non-exempt employees infected (or are suspected of being infected) due to a state of emergency declared by either the Governor of Puerto Rico or the Secretary of the Puerto Rico Health Department.
Act No. 37-2020 was effective immediately on April 9, 2020. It amends the Puerto Rico Minimum Salary, Vacation and Sick Leave Act, otherwise known as Act No. 180-1998.
The key provisions of Act No. 37-2020 is that it amended Article 6 of Act No. 180-1998 to add a subsection (p) to provide an employee infected or suspected of being infected with the disease or illness that caused the state of emergency the right to a special paid leave of five (5) working days. Importantly, to use the special paid leave the employee must first exhaust all available accrued sick leave, as well as any other available accrued leave to which the employee is entitled, including federally enacted paid sick and family and medical leave due to the COVID-19 pandemic under the Families First Coronavirus Response Act. Employees cannot use this special paid leave for any other reason than those specifically established in subsection (p) of Article 6.
On May 11, 2020, the Puerto Rico Secretary of Labor in an interpretative Opinion No. 2020-03 agrees that is the minimum qualifying criteria. The Secretary further opines that under this special leave an employee must also be able to exhaust accrued vacation leave. That despite the fact that under normal circumstances the employer may refuse to exhaust and allow the enjoyment of vacation time. Employees should also be able to use the paid leave of six (6) days for serious and catastrophic illnesses under local Act No. 28-2018. The Secretary points out that this leave will be beneficial to employees of employers with at least 500 employees and certain first responders or medical responder who may not be covered under the federal law cited.
Act No. 37-2020 also amended Article 6, subsection (q), previously subsection (p), of Act No. 180-1998 to add that an employee’s use of the special leave cannot be used as a measure of the employee’s efficiency when determining pay raises or promotions. Likewise, use of the leave cannot be used to justify disciplinary actions, such as suspensions or termination.