Month: August 2021

Puerto Rico remains under a state of public health emergency first announced on March 12, 2020, in connection with the COVID-19 pandemic. In response to the sharp increase in COVID-19 cases on the island, on August 5 and August 11, 2021, governor Pedro Pierluisi issued Executive Orders, 2021-062 and 2021-063, which extend previously-announced vaccination requirements for employees in the public sector (Executive Order 2021-058) to government contractors, employees in the healthcare industry, as well as employees in the hospitality and tourism industry (including hotels, inns, and other lodgings. Concessionaries and other businesses operating within the vicinity of or in connection with these industries have been encouraged to adopt this requirement. Furthermore, all persons who wish to stay at any hotel, inn, short-term rental (including those using internet platforms such as Airbnb, VRBO, and others), must present evidence of vaccination against COVID-19 or a negative COVID-19 test. Executive Order 2021-062 goes into effect on August 16, 2021. The employees covered by Executive Order 2021-062 must be fully vaccinated by September 30, 2021.

In addition, Executive Order 2021-063, which goes into effect on August 23, 2021, sets forth that all restaurants, bars, cafeterias, theaters, cinemas, coliseums, event venues, and any other establishment that serves food or beverages must require their employees to be vaccinated against COVID-19. Employees must present evidence that they have received at least one dose of the vaccine on or before August 23, 2021, and the second dose no later than October 7, 2021.

Subsequently, on August 19, 2021, governor Pierluisi issued Executive Order 2021-064, which further extends local vaccine mandates to include employees of gymnasiums, beauty salons, barbershops, spas, childcare centers, casinos, supermarkets, grocery stores (including business authorized under the WIC Program) and gas stations. These employees must show proof of their first dose of the vaccine on or before August 30, 2021, and of their second dose no later than October 15, 2021.
There are only limited exceptions to the newly-enacted vaccine mandates:

– Documented medical reasons;
– Sincerely held religious beliefs; and
– Evidence of having recovered from COVID-19 in the last three (3) months, along with a medical certification that the employee is no longer contagious.

Any employee who is unable to or refuses to get vaccinated due to covered by an exception to the Executive Orders discussed above must present a weekly negative COVID-19 test. An employee who cannot comply with the foregoing must not be allowed to present themselves to work and must be placed on leave (paid or unpaid, depending on the employer’s policies).

Moreover, all patrons of establishments covered by the aforementioned Executive Orders must present evidence of COVID-19 vaccination; a negative COVID-19 test performed no more than seventy-two (72) hours prior to presenting themselves to the venue, or evidence that they have recovered from a COVID-19 infection within the last three (3) months and a medical certificate indicating that they are no longer contagious. Employers and private establishments are free to implement more restrictive measures.

Establishments who fail to comply with the directives set forth in these Executive Orders shall be subject to fines and criminal penalties, as well as restrictions on their operating capacity. The aforementioned requirements will remain in place until the state of emergency is lifted. Please be advised that it is expected that additional actions will be taken, including the implementation of further vaccination mandates, in order to encourage vaccination, reduce community transmission, and hasten reaching the threshold for herd immunity on the island.

We continue to monitor this situation as the COVID-19 pandemic evolves. For further information or, if you should have any questions or comments, or if you should require more specific guidance on this issue, please contact the Labor and Employment law team at AMG.

In a notable development for employers doing business in Puerto Rico, on 7 August 2020, the local government enacted Law 90, titled the Law to Prohibit and Prevent Workplace Harassment in Puerto Rico (our translation, hereinafter the ‘Workplace Harassment Act’), to prohibit workplace harassment (commonly referred to as ‘mobbing’). Previously, workplace harassment had not been recognised or protected under the law in this jurisdiction, although plaintiff-side practitioners had long argued for such protections. The law went into effect immediately upon its enactment. At this time, employers are expected to be in full compliance and have anti-workplace harassment policies in place. This, along with Puerto Rico’s Wrongful Discharge Statute, Law 80 of 30 May 1976; and strong local anti-discrimination and other workplace protections, distinguishes Puerto Rico from many other jurisdictions in the US. Puerto Rico is currently the only jurisdiction in the United States with a workplace harassment law in place, and all employers doing business here should ensure to have adjusted their policies and practices accordingly.

This workplace harassment statute applies to all employees in the private and public sector, including temporary and fixed-term employees. The Act defines the term ‘workplace harassment,’ and requires employers to take affirmative steps to reduce and eliminate it, including adopting and implementing anti-harassment policies. It also requires employers to address and investigate all allegations of workplace harassment.

In compliance with Article 9 of the Workplace Harassment Act, on 3 February 2021, the Puerto Rico Department of Labor and Human Resources issued Guidelines Regarding Workplace Harassment in the Private Sector in Puerto Rico (translation ours), aimed at providing employers with the necessary tools to enact their anti-harassment policies and procedures, and to clarify for both employers and employees the extent of their rights and obligations under the law.

The Workplace Harassment Act and its interpretative guidance provide a non-exhaustive list of the conduct and actions that shall be considered unlawful workplace harassment. The term ‘workplace harassment’ is defined as malicious conduct that is unwanted, repetitive and abusive, arbitrary, unreasonable or capricious, not related to legitimate business interests, such conduct may be verbal, in writing, or physical, and must be of a nature and severity that infringes on constitutionally protected rights. This includes protection against attacks to the employee’s reputation or private life, and risks against the employee’s health and integrity, among others. In sum, the law forbids conduct that creates a work environment that is intimidating, humiliating, hostile or offensive, which is not conducive to a reasonable person executing their duties or functions in a normal manner. Some of examples of prohibited conduct include jokes regarding an employee’s physical appearance; disregarding an employee’s work-related opinions or ideas in a humiliating way; imposing multiple disciplinary actions that are determined to be reckless; and making public comments regarding an employee’s private or family life. The law requires that the conduct objected to be recurrent and persistent, so that a single act of harassment shall not constitute unlawful workplace harassment. That being said, employers should take care to investigate allegations of isolated incidents in order to prevent their reoccurrence from becoming actionable mobbing.

It is important to reiterate, however, that in order to constitute unlawful workplace harassment, the conduct in question must truly be unrelated to the employer’s legitimate business interests. Meaning that reasonable actions directed to ensure the proper operation of the workplace will not be considered mobbing, even if they are uncomfortable, unpalatable, or unpopular to employees. For example, the legitimate exercise of disciplinary authority of a supervisor over a subordinate; requests or demands of confidentiality designed to protect the products or services provided by the employer, or requirement duty of loyalty of the employee towards their employer; the implementing or promoting policies, procedures, and memoranda to direct the employer’s operations, maximise efficiency and evaluate the employees’ performance in accordance with the employer’s objectives; requests for the execution of overtime work, additional duties or collaboration when needed for purposes of continuity of services or in order to resolve unanticipated or complex situations that impact the employer’s operations; and affirmative actions taken by the employer in order to comply with its duties, obligations and prohibitions, as defined by law.

Given the dynamic nature of the workplace, the foregoing examples are not intended to be exhaustive. Employers are empowered to take any and all decisions and actions in furtherance of the administration of their business and human resources as are necessary, so long as they are not prohibited by law. Accordingly, the good faith evaluation and discipline of personnel, establishment of performance targets and standards, assignment of duties, training and counseling, as well as oversight of work performance are expressly permitted. Employees must be aware that the aforementioned acts make take place periodically and repeatedly and will still not be considered workplace harassment; as any such action by the employer, whether isolated or repeated, is within the employer’s managerial prerogative.

Employers should take note that, unlike some other prohibited forms of harassment which require evidence that they were perpetrated by a superior towards a subordinate, such as quid-pro-quo sexual harassment, unlawful mobbing can take place by and between employees of any rank, be it by the employer, its supervisors, agents, or any other type of employee. Workplace harassment by third parties and non-employees is also prohibited.

Pursuant to the law, the employer shall be liable for the actions of its supervisors and other employees who engage in workplace harassment, when the employer, its agents, or its supervisors ‘knew or should have known’ of the improper conduct, unless the employer can prove that it took immediate and appropriate action to stop the conduct. This defence is not available when it is determined that the employer itself engaged in the prohibited conduct. This law also establishes that the workers’ compensation immunity for work-related injuries will not apply when it is determined that the condition suffered by the employee was prompted by a pattern of workplace harassment. It also authorises the State Insurance Fund to recover expenses incurred in providing treatment to the employee in such situations. Opposing, denouncing, or participating in investigations related to workplace harassment shall be considered protected activity under Puerto Rico’s Anti-Retaliation statute, Law No 115-1991.

Employers and their in-house counsel should take note that the law provides a statutory remedy for unlawful workplace harassment equal to double the amount of any damages proven at trial by the employee, plus attorney’s fees. As a result, even a nominal award can become a substantial amount. However, before any action is filed in court, the employee must exhaust both internal remedies within the company and external remedies with the Alternate Dispute Resolution Bureau of the Judicial Branch through a mediation process. This is new, as under other local harassment statutes, mediation is not required before filing a judicial complaint.

Last week, Governor Pedro Pierluisi signed into law, Act 15-2021, which amends Act No. 42-2017, “Act to Manage the Study, Development, and Research of Cannabis for Innovation, Applicable Standards and Limits”, to provide employment protections to registered and authorized medical cannabis patients by creating a protected category for these employees in their workplaces.

Under Act 15-2021, employers shall not discriminate against an employee who is a registered and authorized medical cannabis patient in the process of recruitment, hiring, promotion, discipline, or termination, or with regards to any other terms and conditions of employment.

These employment protections are not absolute, as Act 15-2021 recognizes certain exclusions if the employer can establish, by a preponderance of the evidence, any of the following:

1. The use of medical cannabis represents a real threat of harm or danger to others or property;

2. The use of medical cannabis interferes with the employee’s performance and essential job functions;

3. The use of medical cannabis by the employee would expose the employer to the risk of losing any license, permit, or certification related to any federal law, regulation, program, or fund; or

4. The registered and authorized patient ingests or possesses medical cannabis in the workplace and/or during working hours without the employer’s written authorization.

Act 15-2021 provides that no employer shall be penalized or denied any license, contract, permit, certification, or benefits under the Commonwealth of Puerto Rico for the sole reason it employs medical cannabis patients.

The provisions of Act 15-2021, are to be interpreted liberally in favor of the registered and authorized patients of medical cannabis.

AMG will remain alert for future developments since the Medical Cannabis Regulatory Board and the Puerto Rico Department of Labor and Human Resources must adopt any regulations or administrative measures necessary to ensure the effective implementation of Act 15-2021 within 90 days by October 27, 2021. Act 15-2021 is effective immediately.

Through this recently enacted legislation, Puerto Rico joins a handful of states that have adopted policies that somehow address anti-discrimination protections for medical cannabis patients. AMG advises its clients to revise their drug testing and discrimination policies to comply with Act 15-2021. For further information or, if you should have any questions or comments, you can consult the Labor and Employment law team at AMG.