Puerto Rico: New leave available for employees to deal with domestic violence, sexual abuse, sexual harassment, stalking and child abuse
Under recently enacted Act No. 83-2019 (the Act), employees of the public and private sector in Puerto Rico may take up to 15 days of unpaid leave each calendar year to handle situations related to domestic violence, sexual harassment, sexual assault, lewd acts, felony stalking and child abuse against them, their spouse or domestic partner, their children, their parents, or other minors, elderly persons, or persons with disabilities under their custody. This leave is in addition to any other leave the employees have a right to request and applies to all employers.
The Act, effective since August 1, 2019, allows the employee to use the leave on a fractioned, flexible, or intermittent schedule. There is no minimum duration. Unused leave from one year does not accrue to the next one. The employee should notify his or her intention of taking the leave at least two days before the absence, unless there is an emergency. If the employee does not show up to work due to imminent danger, he/she must notify the employer of the situation and intention to take the leave within two days after the first day of absence. The notification can be made by phone, email, or any other type of communication, by the employee, a family member, or a professional providing help.
The employee may also request a reasonable accommodation or flexible work conditions to handle the situation, if the tasks and responsibilities of the employee allow it. The employer should grant a change of work location or schedule, the modification of assigned tasks, or any other reasonable adjustment. The accommodation request must be made in writing and should only be denied after considering every possible alternative.
There is no need to report the incident to the police in order to request the leave. However, to request the leave, the employee or his/her relatives must be the victims, and not the perpetrators, of the incident, and the time off must be used to take actions to handle the specific situation, such as seeking a protective order or other judicial order, looking for a safe place to stay, receiving medical services, seeking legal advice, or obtaining any other orientation, benefits, help, or services.
The employer may request that the employee provide evidence of the use of the time off, certifying the date and amount of hours used, which must be provided within two days after the last day of absence. Among the documents the employee may provide as evidence are a court order, a court attendance certification, a police report, a medical certificate, and a certification from the person who provided professional help, including lawyers, counselors, social workers, victim´s shelter employees, and religious leaders. This evidence must be kept in a sealed envelope inside the employee´s personnel file and may not be disclosed unless requested by the employee or the authorities.
The employer must grant the requested leave, reserve the employee´s position, keep confidential all information regarding the situation and inform the rest of the employees regarding any security protocol that needs to be put in place. If the employer does not reserve the position, it will have to pay the employee for the salary he or she would have earned if reinstalled when requested, as well as any damages suffered. The employer may not negatively consider the use of the leave in relation with the employee´s evaluation, efficiency criteria, work schedule, or promotion, or for disciplinary actions or dismissal. An employer may not impede the use of the leave, discriminate, or take any adverse action against an employee who takes this leave. Lack of compliance with the Act will result in a fine of $250 to $5,000. An employee who suffers damages due to the violation of the Act may also seek indemnification in a judicial proceeding.
The Puerto Rico Department of Labor and the Women´s Advocate Office are authorized to perform investigations, receive and file claims and impose penalties, in accordance with a regulation they are required to issue by November 2019.
Employers in Puerto Rico should review their employee manuals, sexual harassment policies and domestic violence protocols to ensure that these new requirements are properly addressed.
Learn more about this new law by contacting any of the authors.