As Puerto Rico starts to reopen, the government is placing much of the burden to stop the spread of COVID-19 on employers. On May 1, 2020, Puerto Rico Secretary of Labor Hon. Briseida Torres Reyes issued Opinion Letter 2020-03 (OL 2020-03) to implement Executive Order 2020-38 (EO 2020-38), which eases some of the current business closure measures. Among other things, EO 2020-38 requires employers now permitted to operate to submit a self-certification to the Puerto Rico Department of Labor and Human Resources (PRDOL). This certification must state that they have enacted a Control Plan or Risk Management Plan before they are allowed to open their business.  Moreover, OL 2020-03 establishes the conditions applicable to those businesses that were not subject to the lockdown under prior versions of the executive order.

OL 2020-03 reiterates an employer’s obligation to ensure a safe and secure workplace for its employees. As such, employers are required to examine the risks associated with their business and to establish the required control measures. Employers are further required to implement the identified risk control measures. Employers are advised to follow OSHA guidelines and the CDC recommendations regarding use of protective equipment (in English / Spanish).

Self-Certification

Employers are required to complete and submit the official Self-Certification Form that has been published by the PRDOL before they begin operations.  The form must be fully completed, executed by an authorized representative of the employer and submitted together with the Control Plan by email to autocertificacionprosha@trabajo.pr.gov.  Among other things, the employer must certify the Control Plan:

• Is a written document specific to the facility to which it applies and considers: (1) the specific services provided, (2) the premises, and (3) the number of employees.
• Contains general information about COVID-19 including its definition, symptoms and ways in which it can spread.
• Includes recommendations issued by local, state and international agencies regarding controlling the spread of COVID-19.
• Establishes the risk classification depending on the level of potential exposure (High, Medium or Low).
• Details the process for monitoring personnel prior to entering the workplace.
• Indicates the number of employees that will work each day.
• Establishes the changes to be implemented to the areas where employees normally take their breaks/meal period.
• Describes social distancing measures (among employees, clients and visitors).
• Indicates how adequate ventilation will be provided to ensure adequate airflows and, in places with air conditioner systems, effective filtering.
• Describes cleaning and disinfecting practices and frequency.
• Provides details regarding hygiene practices, availability of antibacterial soap, and hand sanitizer, and establishes a schedule for employees to wash their hands.
• Provides a list of personal protective equipment (PPE) determined to be necessary considering the nature of the operations (to be provided free of cost to employees). The use of face coverings is mandatory. Employers must also certify that they have trained their employees on proper use and disposal of any protective equipment.

In addition, the Control Plan must establish the procedure to be followed should an employee exhibit symptoms consistent with COVID-19 or is diagnosed with the virus. For example, it should specify under what circumstances the employer will close operations, order the premises to be cleaned and disinfected, and/or place the employee on quarantine.  The employer must also describe monitoring practices for positive cases and reporting the same to OSHA.

The employer must adopt a process for handling employees who are at a higher risk of serious illness, including pregnant employees, those with pre-existing conditions and those who are age 65 or older.

Of importance, OL 2020-03 requires employers to discuss the Control Plan with their employees and maintain evidence they have done so. In addition, for those employers whose employees are represented by labor organizations, the employer must certify the manner in which the Control Plan was discussed with the Union prior to its implementation, and that is has complied with its responsibilities under the collective bargaining agreement. Both instances need to be included in the self-certification.

Finally, an employer must certify who has been designated to evaluate, monitor and inspect potential risk factors and compliance with the Plan.

Only after a business has sent the Self Certification form and the Control Plan by email may it begin operations and be deemed in compliance with CDC and Puerto Rico Occupational Safety and Health Administration (PROSHA) parameters. OL 2020-03 cautions employers that complying with these steps will not release employers from potential liability and/or penalties if they are found to be in violation of established safety and health standards or that the Self-Certification included false information. The PROSHA office may visit and inspect a business for compliance with the Control Plan or to identify deficiencies with the same.

Business that had been allowed to operate under prior executive orders must also send by email the Self Certification and Control Plan as soon and as diligently as possible. All employers must also comply with any requirements applicable to their particular industry.

Additional Considerations

By submitting the Self-Certification, employers consent to appear on a list the PRDOL will post on its webpage for employees and other individuals to check to see whether they should be called back to work. The list will include details regarding employers that have been exempted by the EO who by virtue of having complied with the presentation of the Self-Certification form and Plan can operate their business.  According to the OL 2020-03, this list will be updated at least every two days.

By now, employers probably are feeling overwhelmed with all the requirements and issues they need to consider and/or address in connection to the COVID-19 crisis. We have all been inundated by the number of executive orders, circular letters, and interpretation guidelines that have been issued by federal and local authorities. Thus, it is important for any business to be aware of these developments and consult with counsel.