On April 15, 2020, Puerto Rico’s Secretary of the Department of Labor and Human Resources issued guidance discussing the basic elements employers are required to include in their plans to limit employee exposure to COVID-19 in compliance with Puerto Rico’s Safety and Health in Employment Act (PROSHA).  The guidance first clarifies that the federal Occupational Safety and Health Administration (OSHA) has established a hierarchy of controls to limit workplace risks: elimination of risk, substitution of risk, engineering controls, administrative/practical controls and, lastly, personal protection equipment (PPE). Every employer is responsible for evaluating the risks in their particular workplace and for establishing the adequate controls of risk needed. After completing the evaluation, the employer must then implement the corresponding controls in the hierarchical order OSHA established.

The guidance recognizes that the elimination or substitution of risk regarding COVID-19 is difficult and thus recommends that employers reinforce the remaining risk controls: engineering controls, administrative/practical controls, and PPE. Engineering controls include, for example, physical barriers in the workplace. Administrative/practical controls include steps such as maintaining six feet of distance between people, establishing a schedule for cleaning/disinfecting work areas, or limiting the number of people within the workplace. PPE is the last line of defense and should be provided only when necessary and available, and employees should be trained on how to correctly use and discard PPE.

Accordingly, all employers in Puerto Rico must develop and implement a contingency plan that, at a minimum, satisfies the following elements:

• Is a written document exclusive to the workplace that contemplates the particular tasks, physical structure, and employees staffed there.
• Includes general COVID-19 information such as symptoms and methods of contagion, as well as recommendations issued by the corresponding agencies regarding the control of the virus’ spread.
• Details the monitoring and screening process for personnel prior to entering the workplace, and the procedures to follow in case they detect an employee with symptoms.
• Indicates the number of employees scheduled to work each day, whether they will work in rotating shifts (PROSHA recommends working with reduced staff), etc., and the control measures taken to maintain a safe distance between employees.
• Includes the cleaning and disinfecting procedures to be implemented, as well as an inventory of the products to be used by employees in said process, and the frequency with which said cleaning/disinfecting should be performed.
• Details the methods to maintain employee hygiene, such as designated areas for hand washing, as well as the use and distribution of hand sanitizer (provided by the employer) and other products.
• Indicates and provides evidence of the PPE that was determined to be necessary for employees and that will be provided by the employer free of charge.
• Provides evidence of employee training regarding the correct use, limitations of, and how to properly discard PPE.
• Includes a person designated to constantly evaluate work areas to identify new areas of risk and other needs related to the COVID-19 pandemic.
• Includes evidence that the contingency plan was discussed with personnel.

Lastly, the contingency plan must seriously consider the effects on air quality for buildings that have remained closed, or are functioning partially, for long periods of time. The guidance clarifies that such buildings, and the “sick building syndrome,” can set back any efforts taken to prevent the spread of COVID-19 in the workplace. Therefore, employers are invited to follow the recommendations of pertinent professional associations, such as the American Industrial Hygiene Association, regarding how to maintain healthy interior air quality. The guidance concludes with a reminder that their Consulting Program provides free and non-punitive counseling services and urges employers to comply with their recommendations.