On November 15, 2021, Governor Pedro R. Pierluisi issued Executive Order, OE-2021-075, which became effective immediately. This latest Executive Order (“OE”) highlights the effectiveness of the measures taken until now by the Government of Puerto Rico in addressing the COVID-19 pandemic, and stresses the need to encourage and promote vaccination, particularly facing the Delta or any other variant, beyond the areas wherein it has already been mandated to be administered.
This OE also details the legal decisions issued by several federal and Puerto Rico courts, including the Supreme Court of the United States, which have validated governmental vaccination mandates. Consequently, the OE emphasizes the public interest in fostering vaccination of children in schools, in all areas of the Puerto Rico healthcare system, and in workplaces where a significant number of people work.
The most relevant new disposition of this OE is that it requests mandatory vaccination of employees for private sector employers with fifty (50) or more employees, otherwise known as a “medium-sized company”, thus encompassing also large companies. Employees in the private sector who are not vaccinated will need to submit a negative test results every seven (7) days or submit a positive test result during the last three (3) months, with documents evidencing recovery from the virus and a medical certificate attesting full recovery to return to public places.
Private sector employers in the education and health related industries may only allow employees not to be vaccinated based on a religious or medical related exemption, as such exemptions are defined in the OE.
Each employer must be responsible in requesting each employee the COVID-19 vaccination record card or document certifying that the employee has completed or commenced its vaccination procedure, as the case may be, or the negative test result to COVID-19, or the positive test result during the last three (3) months, with the complementary recovery documentation. If the employee does not comply with any of these documents requested by the OE, the employee cannot work in person on the premises. The employer may take pertinent measures, including allowing the employee to use any available paid or unpaid leave.
Employers are encouraged to allow employees to be vaccinated during working hours, and provide the time necessary to overcome secondary effects, if any, for which the employee may use any accrued sick leave, or any special discretionary leave the employer provides for vaccination.
For purposes of the OE, the term “employee” must be interpreted broadly, including any person that works for a salary or compensation whatsoever.
Employees can comply with the OE by showing, within fifteen (15) days of the OE’s effective date (that is, by November 30th), evidence of commencing the vaccination procedure with the administration of its first dose. Employees then must evidence the administration of the second dose, if the type of vaccine administered requires it, within forty-five (45) days of the OE’s effective date (that is, December 30th).
Any violation of the OE provisions by any person or company is subject to criminal sanctions, including incarceration which may not exceed six (6) months, and monetary fines, or both, and other administrative fines by the Puerto Rico Department of Health.
Those employers who already have vaccination policies in place should review them to ensure that they are in compliance with the OE.