Most people in Puerto Rico will remain under the lockdown and curfew Executive Orders as the Commonwealth tries to contain the novel coronavirus COVID-19 to avoid loss of life and the overload of the health system.
On Thursday, April 30th, 2020 the Governor, Hon. Wanda Vázquez Garced, announced that she would extend the lock down and curfew orders with certain modifications, providing for new exceptions to certain services, businesses and industries set to reopen, provided they met special safety and health standards, requiring Contagion Risk Management Plans, and allowing people to exercise outdoors.
The Department of State published the new Executive Order No. 2020-038 on Friday, May 1st, 2020 at about 6:10 p.m.
The extension will last for about three (3) weeks or fourteen (14) days, until May 25th, unless modified before that date based on the monitoring of the pandemic locally.
The general order provides for Individuals to stay under curfew 24/7. Those who are not otherwise specifically exempted from the lockdown / curfew may exit their homes from 5:00 a.m. to 7:00 p.m. for very specific reasons related to: (a) medical appointments, visits to hospitals, laboratories, and medical services; (b)the purchase of food, medicines or pharmacy products, or basic necessities; (c) visiting an exempt establishment; and (c) to provide or receive an exempted service under this Executive Order.
This includes care givers or providing transportation of elderly, minors, infirm, disabled, dependents or other vulnerable people who require medical or professional attention; and visiting a financial institution.
Closure of Commercial Establishments and Private Entities The intent of the Executive Order is to continue with the with 24/7 lock down restrictions for the operations of non-essential businesses, except for certain individuals, establishments, operations, activities and services deemed to be exempted as summarized herein.
Examples of specific places still required to close are: movie houses, discotheques, concert halls, casinos, gyms, bars, amusement parks, places and events of reunion, and marinas, etc.
Quarantine and Isolation Orders
Ordered all persons as to whom there is a reasonable suspicion of having been exposed to COVID-19, regardless of whether they are presenting signs or symptoms of contagion, to remain quarantined at home for a period of 14 days.
Ordered a 14-day social isolation, including reclusion or other restrictions to movement, for any person who has been infected with COVID-19 or as to whom there is a reasonable suspicion of having been so infected.
The partial reopening process begins Monday, May 4th, 2020 with the following exemptions from the lockdown:
1. The following outdoor physical activities, provided physical distancing of at least six (6) feet between individuals, use of face masks, and disinfectant gel – walking, jogging, bicycling, strolling with children or pets between 5:00 a.m. and 3:00 p.m. Provided centers or facilities to practice physical activities, or gather mass gatherings like parks, athletic fields or tracks, beaches, gyms, among other shall remain closed to the public;
2. Executive agencies of the Government work shall continue working remotely if possible, provided up to five (5) persons twice a week may be required to show up to their work areas. Essential workers shall continue working;
3. Commercial establishment exemptions:
(a) Prepared food sales, only through drive-through, carry out or delivery. No entry of the patrons into the establishment is permitted;
(b) retail or wholesale food sales, businesses related to food distribution, agriculture, home farms, beverages, animal feed, including food processors and preparers, and distribution of food and beverages;
(c) supermarkets and grocery stores, including businesses with a grocery section which may remain open to the public Monday through Saturday from 5:00 a.m. to 8:00 p.m. However, their delivery services may continue operating until 10:00 p.m. Supermarkets and grocery stores shall be closed to the public on Sundays but may remain open in order to clean, disinfect or restock goods and merchandise;
(d) New: fresh food kiosks (fruits, vegetables and greens) which were open to business prior to March 15, 2020 may now open (no hours and days limitations published) provided they implement safety measures (for example: masks, gloves, and disinfectants, among others);
B. Medicines, medical equipment or other articles, and pharmacies, including the production, sales and rendering services related to medicines, medical care, or other articles related to medical services, and those within the chain of distribution thereof:
(1) manufacturing and sales of medical devices;
(2) biotechnology, including agricultural biotechnology;
(3) manufacturing of supplies for hospitals;
(4) clinical laboratories;
(5) medical cannabis dispensaries, growing and processing facilities;
(6) pharmacies may now open normally “from Monday to Sunday”;
(7) New: primary care physicians and specialist, including mental health, and elective medical procedures, should continue using telemedicine but can see patients, and conduct procedures by appointment and in accordance with all safety guidelines including those published by the Department of Health. For procedures in hospitals, must certify adoption of protocols by the medical community and the Department of Health, including suggesting conducting the COVID-19 test. Aesthetic procedures must not be conducted;
(8) New: dental offices may now operate in accordance with ADA and Dental Board guidelines and other COVID-19 general safety guidelines;
(9) New: optometrist offices, may now operate in accordance with general safety guidelines;
C. Gas stations and their distribution channels
Production, refining, distribution wholesale and retail sales of gasoline, diesel, jet fuel, aviation fuel, propane, butane, natural gas, kerosene, intermediate fuels, blends, among others, may now open normally “from Monday to Sunday”;
D. Financial institutions
(1) Banks and Credit unions which provide deposit services for deposits, withdrawals and receipt of payments;
(2) mortgage banks, loan companies or entities, may conduct lending and closings by appointment and one (1) person at a time, provided preliminary documents are exchanged electronically; and
(3) pawn shops but only to execute an agreement to lend or to receive payments for debts; they are expressly prohibited from selling goods or services;
E. Groups or organizations providing services to satisfy basic needs of vulnerable peoples such as homeless shelters, food banks, victim shelters, temporary housing, animal shelters, among others.
F. Auto parts and repairs shops may conduct repairs and sell vehicles parts, technicians, tire repairs and sales, parts distributors, may operate Mondays and Fridays between 9 AM and 5PM by appointment, with masks and other safety measures, and taking one client at a time at the establishment and otherwise not receive public;
G. New: Hardware stores will be allowed to operate Monday to Friday, 9:00 a.m. to 5:00 p.m. and by appointment via e-mail or phone, may not open to the public except they may take one client at a time at the establishment using masks and other safety measures;
H. Textiles Textile businesses, as long as they comply with the protocols and regulations set forth by the Puerto Rico Occupational Safety and Health Administration (“PROSHA”) to protect employees from infection of COVID-19, which manufacture: uniforms, shoes, components/equipment for the Department of Defense may operate open; and personal protective equipment (e.g., face masks, head covers, health gowns, gloves and other protective equipment used as healthcare protection).
I. New: Laundry and laundromats will be allowed to operate Monday to Friday, 9:00 a.m. to 5:00 a.m. by appointment, via e-mail or phone, to coordinate drop off and pick up, may not open to the public, except they may take one client at a time at the establishment using masks and other safety measures, and have a maximum of three (3) employees, and in accordance with Department of Labor and Human Resources directives;
J. New: Vehicle Inspection Centers will be allowed to operate Monday to Friday, 9:00 a.m. to 5:00 a.m., by appointment, via e-mail or phone, may not open to the public, except they may take one client at a time at the establishment using masks and other safety measures, and in accordance with Department of Labor and Human Resources directives;
K. Ornamental agriculture will be allowed to operate Monday to Friday, 9:00 a.m. to 5:00 a.m., by appointment, via e-mail or phone, to coordinate drop off and pick up, may not open to the public, except they may take one client at a time at the establishment using masks and other safety measures, and in accordance with Department of Labor and Human Resources directives;
L. Security Agencies and private security companies.
M. National Security
(1) manufacture, sales and services related to the Aerospace industry; and
(2) goods and services related to any federal agency including the Department of Defense; and (3) supply chain of goods and services under Sec 5 (exempt commercial establishments) and Sec 6 (exempt services) of this Executive Order.
4. Service establishment exemptions, in cases of emergency, by appointment via phone or e-mail, and the establishment do not open to the general public:
A. Plumbers, electricians, repair, maintenance or replacement of domestic appliances, pest control and extermination of insects, cleaning of pools, elevator maintenance, repairs and inspections, access controls, for individuals, in residences, commerce industry and to the public, with gloves and masks;
B. roadside assistance in case of emergency;
C. delivery and forwarding of packages and mail observing safety, hygiene, social distance aspects;
D. funeral and mortuary services including, cremations and burials, but without the wake open to the public;
E. installation, repair, replacement, maintenance and refurbishment of critical telecommunications infrastructure, including their facilities and:`
(1) repair, delivery, servicing, substitution of mobile phones, tablets, cable tv boxes and similar equipment, antennas, needed for consumers to use such critical infrastructure provided service of such equipment is made at designated and approved locations by licensed companies only as coordinated with the Bureau of Telecommunications, any others service establishments must remain closed;
(2) solar or alternate energy producing equipment sales, service, installation and maintenance.
(3) repair and maintenance of roads, and autopistas;
(4) repair and maintenance of private infrastructure; and
(5) sales, service and maintenance of infrastructure and equipment for the hurricane season.
F. Trash collection, recycling and maintenance and cleaning;
G. Services related to any federal agency, including the DOD;
H. Export of non-essential articles in inventory;
J. Ports and airports;
K. Processing of electronic transactions;
L. New: Telephone and internet sales for which warehouses may operate for curbside pick up one client at a time or delivery;
M. Supply and distribution of articles for exempt companies;
N. Logistics and transport services such as customs brokers and agents, freight consolidators, warehouses and distribution centers and for the distribution of detergents, healing products, and products involving hygiene and cleaning;
O. Technology manufacturing, of appliances and electronic articles, including ink for printers; fire prevention, including their sales, design and installation;
P. Armories for the security sector;
Q. New: repair and maintenance of air conditioners;
R. New: taxis and public transportation services which deliver goods in accordance with NTSP regulations;
S. New: Data centers;
T. Call centers;
U. New: Public notaries;
V. New: lawyers and accountants, and other akin professional services, to the extent that remote services cannot be provided remotely, by prior appointment, observing social distancing, and one customer at a time.
W. New: Universities offering learning remotely, with their premises closed to the public. Teaching staff, admin, IT, telecommunications employees needed to maintain their remote services.
5. Patrons & Employees
Executive Order No. 2020-038 continues the requirement of safety measures to be followed by the public when visiting any of the exempted businesses:
(1) Use masks or similar articles of clothing (e.g., scarfs) that cover the area around the mouth and nose. Employees must now also wear such masks;
(2) Maintain at least 6 feet apart from any other person; and
(3) Only one member of a household will be allowed to enter an establishment at a time (except when assisting others with a health or physical disability).
In order to protect the health and safety of their employees and customers, private businesses must require their customers to comply with these safety measures in and out of the premises and refuse entry to any person who does not wear a face mask or other similar mouth and nose cover. They must also provide stations or allow persons to otherwise disinfect their hands while remaining in the premises.
New: Employer must ensure that employees must wash their hand before and after their shifts with water and soap for 20 seconds or with disinfectant gel. The employees must wash their work areas when they arrive and after their work shift.
Executive Order No. 2020-038 still recommends supermarkets and pharmacies to adopt special hours for senior customers who are older than 65 years of age. Also, if possible, should offer preferential service to those persons who work in hospitals, clinical labs or public safety.
6. Individuals excluded:
A. New: Persons who provide assistance, care, food, transportation, to people, including the elderly, minors, dependents, the disabled, or the vulnerable, who require professional or medical attention, provided safety measures against contagion are used;
B. employees of private and public security agencies;
C. healthcare professionals, including mental health, hospital, pharmacy, pharmaceutical plants, biosciences, and health center workers;
D. food distribution supply chain, including agricultural supplies, including those working fresh product food stands established prior to March 15, 2020, may take one client at a time;
E. workers at utilities and critical infrastructure;
F. service providers exempt from closing order while engaged or on duty;
G. workers at call centers;
H. workers at sea ports and airports;
I. press and other media;
J. those tending to emergencies and health related issues;
K. government employees coming and going to work;
L. Municipal police;
N. Natural Resources Department rangers;
O. Internal Revenue Agents of the Treasury Department;
P. Legal representatives of citizens accused of crimes with a court hearing; bail reduction and habeas corpus proceedings;
Q. New: Legal representatives in civil proceedings with court hearings;
R. New: Public notaries as authorized by the Puerto Rico Supreme Court;
S. Individuals with autism to take therapeutic excursions near their homes while accompanied by one person.
T. Department of Consumer Affairs (DACO) Inspectors;
U. New: Essential workers of the Electoral Commission (CEE);
V. New: University laboratories researchers;
W. New: Toll workers and toll booths;
X. The rest of the population can only go to an exempt establishment or commercial place or require exempt services when needed. Absent an emergency they should stay at home;
Y. New: On May 4th and the 13th, 2020, from 5:00 a.m. to 2:00 p.m., employers may have up to five (5) employees at their offices in order to process payroll; and
Z. New: On Tuesday, May 5, 2020 from 5:00 a.m. to 2:00 p.m., to foster remote working, employees are permitted to visit the employers’ premises to gather equipment and materials, and to hand out the same.
7. Religious Events over Electronic Media
Priests, Pastors, Reverends, Bishops, Imams, Rabis, and/or any other principal leader of any other religious entity who has no symptoms of COVID-19 may in cases of emergency or crisis tend to their ministerial duties outside of their homes, when they cannot accomplish them remotely. They may also carry out and participate in services, mass, or other events, over radio, television, or other digital media, without their followers present, to present them live or record them for later publication. Up to ten (10) people (camera and sound technicians) without symptoms, observing social distancing, and taking other cleaning and disinfection measures, may assist, clergy working at churches, synagogues, mosques, and other temples to record and transmit their remote services over radio, TV or other media.
New: All construction work which was not previously exempted from the lockdown orders, including construction in marinas to prepare for hurricanes, private, residential, and governmental, including repairs and reconstruction due to natural disasters, may commence operations as of May 11th, 2020, provided it follows the Centers for Disease Control (“CDC”) guidelines, those from the U.S. Department of Health and Human Services (perhaps meant to include the Federal Public Health Service not mentioned), the U.S. Department of Labor, and the Occupational Health Administration (“OSHA”) (despite OSHA’s limited jurisdiction in Puerto Rico). Prior to the commencement of operations, strict safety measures must be implemented, including training, orientations, and continuous supervision regarding new measures implemented in the workplace. The supply of materials, including cement, to construction sector is authorized.
New: All manufacturing which was not previously exempted from the lockdown orders, may commence operations as of May 11th, 2020, provided it follows the Centers for Disease Control (“CDC”) guidelines, those from the U.S. Department of Health and Human Services (perhaps meant to include the Federal Public Health Service not mentioned), the U.S. Department of Labor, and the Occupational Health Administration (“OSHA”) (despite OSHA’s limited jurisdiction in Puerto Rico). Prior to the commencement of operations, strict safety measures must be implemented, including training, orientations, and continuous supervision regarding new measures implemented in the workplace. The supply of materials, including cement, to construction sector is authorized.
10. Mandatory Workplace Contagion Risk Management Plans for ALL employers
New: Each employer in exempted categories from the lockdown provisions is ordered to prepare a Contagion Risk Management Plan based on OSHA’s 3990 guidelines of March 2020 which were adopted locally by PROSHA, and the CDC prior to its commencement of operations.
Each employer must fill out and submit an official form of auto-certification of compliance to the Puerto Rico Department of Labor and Human Resources.
It was expressly provided that exempted employers in prior Executive Orders which were already operating must also certify compliance, as soon as possible, but shall not be required to close its operation in the meantime, while it complies with this new requirement.
The OSHA Guidelines, locally adopted by PROSHA, include general and sector-specific coronavirus measures for the reopening businesses, including avoiding groups of employees in close contact, worker distancing, work-area disinfection, using facemasks, and having employees check for symptoms of COVID-19.
If you have any questions or wish additional information regarding the Contagion Risk Management Plan or the PROSHA COVID-19 Guidelines please contact any of the attorneys of NOLLA, PALOU & CASELLAS, LLC.
11. Protection of Employees asserting their rights
Executive Order No. 2020-038 contains a public policy statement reminding employers and employees of the prohibitions and protections against dismissal, discipline or any form of discrimination against an employee due to the exercise of rights under labor and employment laws, including the recent Families First Coronavirus Response Act, and Puerto Rico Act No. 37 of 2020, any leaves of absence, for filling a complaint, testifying in a related proceeding, or trying to testify.
Another, portion of Executive Order No. 2020-038 states that employers should seek to protect employees who may be more vulnerable “to contract COVID-19”, taking this into account when it recalls employees back to work. A literal reading just requires a determination of risk of contagion, not of possible outcome of contagion. It is not clear whether the intent was to suggest employers poll employees to self-identify as to whether an employee is more vulnerable or if the employer should make further risk assessments at the specific work area of the employee at the place of employment.
Employers are further reminded about limiting the number of employees in common areas , use masks, social distancing, and proceed with caution, for example, with the cafeterias, mess halls, terraces, among others.
12. Recreational boating and other sea vessels:
Recreational boating and other maritime activities are discouraged. Exceptions are commercial fishermen, residents of vessels, and those allowed under federal regulations. Law enforcement may patrol the waters of Puerto Rico to discourage recreational transit and mayors are authorized to reject the landing of passengers from any sea vessels.
13. Derogation of Prior Executive Orders
This Executive Order does not expressly leave without effect any prior Executive Orders on this subject matter. Instead, it just states that its provisions modify any specific portion in prior Executive Orders which may be incompatible. Therefore, guidance from agency heads may still be persuasive to clarify commercial establishments and services subject to lockdown.
14. Mandatory Quaratine of incoming airline passengers
On March 30, 2020 the Governor of Puerto Rico issued Executive Order No. 2020-30 with indefinite duration during the emergency to order a mandatory 14-day quarantine of all passengers arriving at the SJU airport. Arriving individuals must fill out a form with certain details. Residents shall stay at home and visitors shall stay in their rooms at their lodging and not common areas. There are some exemptions for relief work and others. We find that these provisions have not been repealed by Executive Order No. 2020-38.
You may visit our prior posts on these subjects at: https://www.npclawyers.com/puerto-rico-revises-covid-19-lock-down-and-curfew-quarantines-arriving-airplane-passengers-and-prohibits-publication-of-false-information-on-emergency-executive-orders/
We express no opinion as to the constitutional validity of these Executive Orders, and Circular Letters thereunder. Preventing the spread of a pandemic is obviously a compelling government interest. Based on precedent it may be a valid exercise to enact laws to prevent the spread of a contagious disease if narrowly tailored to the necessities of the moment. We are observing these provisions in due respect to the governments ’constitutional limitations and expecting some flexibility in enforcement, and out of our civic duty to prevent the spread and safeguard our families, friends and other members of the community.
If you have any questions or wish additional information regarding this matter, please contact any of the attorneys of NOLLA, PALOU & CASELLAS, LLC.
This communication is for informational purposes only. It is not intended as, and does not constitute, either, legal advice or solicitation, of any prospective client.
This communication is intended, merely, as another tool to keep the business community, our clients and friends informed as to breaking legal developments.
An attorney-client relationship with NOLLA, PALOU & CASELLAS, LLC cannot be established by reading or responding to this information; such a relationship may be formed only by a specific and explicit agreement