On August 1, 2019, several days after having announced his resignation as Governor of Puerto Rico but one day prior to its effectiveness, outgoing Governor Ricardo Rosselló Nevares signed Act No. 83-2019 (“Act 83” or “the Act”), which creates a special leave for employees dealing with domestic or gender-based violence, child abuse, sexual harassment in the workplace, sexual assault, lewd acts or felony stalking. Act 83 went into effect immediately, so employers need to be mindful of its implications and the rights afforded to employees and, to the extent necessary, revise any policies and protocols accordingly.
In general terms, the Act provides employees in Puerto Rico an annual unpaid leave of up to fifteen (15) days to, among other things: (i) seek orientation and secure a protective order or any other judicial order or remedy; (ii) seek and obtain legal assistance; (iii) seek and obtain safe housing or shelter; (iv) seek medical assistance or visit a hospital or clinic; and (v) seek any other available assistance, orientation or benefits. These fifteen (15) days are in addition to any other leave to which the employees may be entitled to pursuant to law and it is the employee’s discretion to request the leave pursuant to this Act or any other leave, paid or otherwise, applicable to similar situations. Additionally, the special leave may be fractioned, taken intermittently, or by way of a flexible schedule.
Notably, this Special Leave applies not only when the employee is facing these situations, but also by association, or when a family member of the employee is the one facing these situations. Pursuant to the Act, covered family members include: (i) children; (ii) spouses; (iii) partners united by an affective relationship; (iv) parents; and (v) minors, persons of advanced age or with disabilities over whom the employee has custody or guardianship.
The Act sets forth several obligations the employer must comply with: (a) provide the Special Leave to every employee that makes the request; (b) keep all information and documents related to any employee that requests the Special Leave confidential; (c) reinstate the employee to his/her position upon return from the Special Leave (employment reserve); and (d) provide orientation to all of its employees with respect to their duties and rights pursuant to the Act, as part of any protocols and policies implemented in the workplace.
Likewise, the employer cannot use or consider any days taken under the Act for purposes of issuing negative performance evaluations or in connection with adverse employment actions, such as reduction of working hours, shift changes or reclassification of job titles, and termination of employment. Moreover, the employer cannot use or consider any justified absences for purposes of an employee’s efficiency during an evaluation process, whenever said efficiency criteria are considered for salary increases or promotions. This prohibition is consistent with Act No. 60-2018, which amended Article 6 of Act No. 180-1998, to prohibit employers in the private sector from considering employee’s justified sick leave absences as criteria in performance reviews, compensation, promotion and/or disciplinary related decisions. Lastly, employers cannot discriminate against employees that request the Special Leave or interfere with an employee’s rights under the Act.
Employees are entitled to request reasonable accommodation or flexible working conditions that will enable him/her to deal with or handle a situation of abuse (“maltrato”). Examples of accommodation may include physically transferring the employee to a different location, modifying the employee’s duties, modifying the employee’s shifts or working times and/or any other change that will allow the employee to seek and obtain the help necessary to deal (either the employee or the employee’s family member) with the domestic or gender-based violence.
Generally, the employee must notify of his/her intention to make use of the Special Leave at least two (2) business days prior to the date of absence unless circumstances beyond the employee’s control do not allow for such prior notice. Whenever the employee’s health or safety is at risk, notice shall be provided within two (2) working days from the employee’s first absence under the Act. Notice may be given by the employee, family member, therapist, counselor, religious leader or qualified professional who has assisted the employee or family member as result of the abusive situation or conduct. Said notice may be provided by phone, fax, in person, e-mail, writing or any other reliable method of communication.
All documents submitted or created in connection with the Special Leave afforded by the Act shall remain strictly confidential and be placed in the employee’s personnel file, under seal. The Act, however, provides several exceptions to the confidentiality requirement. These include an employee’s request and written consent for disclosure; responding to a subpoena or court order; complying with a federal or local law that requires disclosure.
The employer may request from employees that request the Special Leave or reasonable accommodation pursuant to the Act, documents that establish the propriety of the leave entitlement. The employee shall provide the requested documents within a reasonable period of time that shall not exceed two (2) working days from the last absence taken pursuant to the Special Leave. The documents provided must certify the time dedicated by the employee to address each particular situation, detailing days and hours. In cases involving minors, only the minor’s initials will be provided. It is important to note that the employer cannot request evidence of arrest or conviction to justify absences under the Act.
An employee can satisfy the employer’s request for documents providing one of the following: (a) a restraining order, an order providing analogous relief or any document or certification issued by a Government instrumentality or by a competent court of law as a result of an abuse situation involving the employee or employee’s family member; (b) official document issued by a court of law, agency or service provider that assisted employee or family member in relation to an incident of abuse; (c) complaint or police report documenting situation; (d) document containing admission or confession by the perpetrator of the abusive conduct; (e) medical certification related to treatment received as a result of the abusive situation or conduct; (f) certification by service provider (therapist, social worker, health professional, religious leader, shelter director, attorney or qualified professional that assisted or counseled employee or family member in relation to abusive situation or conduct); (g) sworn statement by co-worker witness to the abusive situation or conduct; and (h) any other document that credibly shows the employee was engaged in matters related to an abusive situation against the employee or employee’s family member.
The Act provides that the Department of Labor and the Office of Solicitor of Women shall create, within ninety (90) days from the statute’s enactment, bylaws setting forth the investigative and adjudicative process and the guidelines for the imposition and recovery of fines. In the private sector, the Department of Labor shall have the faculty to investigate, receive and file complaints and impose penalties. Employees may also file a civil action to recover damages stemming from an employer’s violation of the Act.
Please consider the implications of this Act when making any determinations that may involve employees or employees’ family members subject to abusive situations or conducts contemplated in the Act and adjust your policies, handbooks and protocols accordingly. Also, bear in mind that, pursuant to the Labor Transformation and Flexibility Act, whenever an employer is put on notice of a situation involving domestic violence, sexual assault or stalking, there is an affirmative obligation to make reasonable adjustments or accommodations in the workplace to protect employees from a potential aggressor and failure to do so shall be presumed to be discriminatory conduct.
If you have any questions or comments regarding the Act 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:
|Juan J. Casillas Ayala
|Luis F. Llach-Zúñiga
|Israel Fernández Rodríguez
|Luis R. Ramos Cartagena
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