Puerto Rico starts reopening businesses: Employers must establish exposure control plans

Capitol building old San Juan Puerto Rico

Latin America Alert

COVID-19 Alert

By:

On May 1, 2020, the Governor of Puerto Rico issued Executive Order OE-2020-38, which extends until May 25, 2020 the lockdown in place since March 16 due to the coronavirus disease 2019 (COVID-19) emergency and identifies the first group of non-essential businesses that may resume operations. Each phase of the plan to reopen businesses will have a minimum duration of three weeks, and additional businesses will be allowed to reopen gradually as long as the contagion rates remain under control. The authorization to reopen is conditioned on the adoption of strict measures by employers to avoid contagion.

Once an employer becomes exempted from the lockdown by Executive Order, it must submit an Exposure Control Plan and a self-certification to the Puerto Rico Department of Labor prior to reestablishing operations. Employers who have previously been exempted from the lockdown and are already operating do not have to stop operations until they submit these documents; however, they must submit the documents as soon as practicable.

The Executive Order and the corresponding guidance from the Puerto Rico Department of Labor provide that an Exposure Control Plan must be designed for each worksite after performing an assessment of the health risks in the workplace and establishing how they will be controlled, through engineering controls (physical barriers between employees), administrative controls (keeping distance between employees, disinfecting the work area, limiting the amount of persons in the area) and protective equipment (masks, gloves, face shields). In this regard, employers are urged to follow the guidelines published by the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control (CDC). The Exposure Control Plan must include all the elements required by the rules published by the Puerto Rico Department of Labor and may be crafted following the model provided by the Department of Economic Development and Commerce. These elements include: monitoring prior to entering the workplace, number of employees per shift, measures to control the distance between employees and clients, cleaning and disinfection methods, personal protection equipment (PPE) that will be provided by the employer, procedures to follow if an employee exhibits symptoms or tests positive to COVID-19, management of employees in high risk groups, and training of employees on use of protective equipment and COVID-19 related measures.

The required self-certification is a checklist of the elements that must be included in the Exposure Control Plan. The employer must certify that it is following the necessary measures. The submission of the self-certification along with the Exposure Control Plan will be considered evidence of compliance with the Puerto Rico OSHA standards (known as PROSHA). Nevertheless, the Puerto Rico Department of Labor may review the documents and notify the employer of deficiencies, which will then need to be corrected. Additionally, the employer will be subject to penalties if it does not comply with its Exposure Control Plan or submits false information in connection with the self-certification. The Puerto Rico Department of Labor may visit worksites to perform inspections.

The first group of non-essential businesses that were allowed to resume operations starting on May 4, 2020 were selected because their infection risk index was deemed to be low. These businesses are:

  • Roadside assistance, locksmith services, plumbers, electricians, exterminators (pest control), home appliances repair and replacement, air conditioning repair and maintenance, landscaping, elevator and pool maintenance services and other services necessary for the maintenance of health or security in residential, commercial, industrial or public places – may not open their establishments but may provide services on-site
  • Delivery and courier services – may operate following measures of social distancing
  • Transportation services by taxi drivers and public drivers for freight delivery
  • Hardware stores – by appointment, one customer at a time, Friday and Saturday from 9 am to 5 pm, and may dispatch orders from Monday to Thursday
  • Vehicle inspection centers, vehicle parts and repair stores, and ornamental horticulture businesses – by appointment, one customer at a time, Monday to Friday from 9 am to 5 pm
  • Tolls on highways and recharging stations
  • Critical infrastructure (electricity, renewable energy, water, ports, roads, equipment to protect from hurricanes) – installation, repair, maintenance and restoration allowed
  • Telecommunications – installation, repair and maintenance of infrastructure is allowed; repair and replacement of equipment authorized onsite or at stores by appointment
  • Construction work, supply of building materials, manufacturing and distribution of cement
  • Funerary homes – may pick up, prepare, bury or cremate corpses, but not celebrate funerals
  • Garbage collection, recycling and cleaning services, moving services, fire prevention services
  • Services related to federal agencies, ports, and airports, customs brokers, ocean or ground freight consolidation services, third party storage, armory services for security sectors
  • Electronic transactions processing, export of non-essential merchandise currently in inventory
  • Sales by phone or online – warehouses to provide these products may operate curbside pickup, one client at a time, or provide delivery
  • Textile businesses that manufacture personal protection equipment and clothing or equipment for safety personnel – may operate following measures of social distancing
  • Laundry and laundromat services – only for drop-off and pickup, only three employees working at the same time, Monday to Friday from 9 am to 5 pm
  • Supply and distribution for industries exempt from closure, including distribution of detergents, disinfectants, and hygiene and cleaning products
  • Data center and call center operations, information systems personnel for remote learning at colleges, researchers in laboratories at universities
  • Notary services for all types of transactions, legal, accounting and other similar professional services necessary for the exempted sectors that cannot be provided remotely - by appointment

Essential services continue to operate with certain restrictions, including: supermarkets, carry-out and delivery food services, food providers and their distribution chains, pharmacies, medical services, medical supplies providers and their distribution chains, gas stations and their distribution chains, financial institutions, elderly homes, shelters and organizations that provide services to vulnerable persons, public and private security officers, critical infrastructure employees, and essential personnel from the three government branches.

The manufacturing industry will be allowed to reopen starting on May 11, 2020, after certain safety measures are implemented.

The general lockdown order to stay at home 24 hours a day remains in effect. From 7 pm to 5 am, no one can be out of his or her home except in case of an emergency. From 5 am to 7 pm, citizens are permitted out of their homes to receive essential services or work at exempted businesses. Additionally, any person with COVID-19 symptoms or who has been in contact with someone diagnosed with COVID-19 must be quarantined for 14 days.

If you have any questions regarding these new requirements and their implications, please contact the authors or your DLA Piper relationship attorney.

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This information does not, and is not intended to, constitute legal advice.  All information, content, and materials are for general informational purposes only.  No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.