Dol Issues Additional Guidance Making It Clear That Covered Employers Subject To Oe-2020-023 And Forced To Close Their Business, Don’t Have To Provide Paid Sick Leave To Employees

Yesterday, March 26th, the Department of Labor (“DOL”) issued additional guidance by way Questions & Answers and stating the DOL’s position with regards to an employer’s obligation to comply with the paid leave requirements set forth in the Families First Coronavirus Response Act (hereinafter, the “FFCRA”), specifically paid medical leave under the Emergency Family and Medical Leave Act and paid sick leave under the Emergency Paid Sick Leave Act. The DOL has assumed the position that the FFCRA will come into effect April 1st.

Since the enactment of the FFCRA on March 18th, there was much discussion amongst the legal community in Puerto Rico concerning a covered employer’s obligation to provide paid sick leave to its employees despite being closed for business as a result of OE-2020-023. As reported in one of our previous Newsletters, an employee of a covered employer not able to work (or telework) due to said employee being subject to a Federal, State or local quarantine or isolation order related to COVID-19, shall be eligible to paid sick leave pursuant to the Emergency Paid Sick Leave Act. In light of OE-2020-023 and the fact that many employers in Puerto Rico with less than 500 employees had to close operations and will continue to remain closed for business in light of the recent announcement regarding the extension of OE-2020-023 until April 12th, some in the legal community interpreted the language of the Emergency Paid Sick Leave Act broadly and concluded that covered employers who would be forced to close as a result of OE-2020-023 would nonetheless have to pay all of their employees paid sick leave pursuant to the FFCRA. Yet, others relied on the language of the statute and a collective reading of the Emergency Paid Sick Leave Act’s provisions related to COVID-19 and opined that the “quarantine or isolation” order referenced in reason #1 of the Emergency Paid Sick Leave Act was limited to individual employees and not extensive to an order mandating business closures, such as OE-2020-023. Based on this latter interpretation, an employer who had to close its business would not have an obligation to provide paid sick leave to employees pursuant to the FFCRA.

Thanks to the additional guidance published yesterday by the DOL, it is now clear that covered employers in Puerto Rico who are closed for business when the FFCRA comes into effect on April 1st will not have an obligation to provide paid sick leave pursuant to the FFCRA to their employees who are unable to work or telework due to the business closure. In other words, OE-2020-023 is not considered a quarantine or isolation order for purposes of Section 5102(a)(1) of the FFCRA. You can view the DOL’s 37 Questions & Answers here.

As always, if you have any questions or would like additional information, please feel free to contact any of the attorneys listed below at your convenience. Due to the current lockdown in Puerto Rico, recently extended until April 12th, we are working remotely so you may contact us via email or directly on our mobile phones.

Juan J. Casillas Ayala787
Luis F. Llach-Zúñiga787
Israel Fernández Rodrí
Luis R. Ramos


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