As the first phase of Puerto Rico’s plan to restart the economy, and following the recommendations of the Medical and Economic Task Forces, Governor of Puerto Rico Hon. Wanda Vázquez-Garced issued Executive Order 2020-038 (“EO-038” or the “Order”) on May 1, 2020. The Order, which will become effective on Monday, May 4, 2020, has a dual purpose. First, it modifies the latest Executive Order issued on April 12, 2020, and allows certain commercial businesses and/or commercial activities or services that had remained closed and/or suspended since March 15, 2020, to resume operations. Second, it extends the lockdown and curfew measures until May 25, 2020.

EO-038 lists commercial businesses authorized to reopen on May 4, 2020, as well as those industries that, provided they meet certain criteria, may resume their operations on May 11, 2020. Notably, EO-038 imposes limitations on the reopening and advises on the safety measures that must be taken.  Among these requirements are that employers must prepare COVID-19 Exposure Control Plans and submit to the Puerto Rico Department of Labor and Human Resources a self-certification that they have done so, as well as provide their employees with the required personal protective equipment. Employers continue to be encouraged to limit the number of employees physically present in the workplace and to use telework whenever possible.  

Commercial Businesses and Professional Services that May Resume Operations on May 4, 2020

EO-038 authorizes the following professional services and commercial businesses to resume operations starting on May 4, 2020, subject to the specified limitations, and the less stringent measures that will be permitted.

Professional Services and Commercial Establishments

The following professional services and commercial establishments will be allowed to operate Monday through Friday between 9:00 a.m. and 5:00 p.m., but by appointment only, with one person being served at a time, and taking the required social distancing and safety measures:

Professional Services

• Insurance
• Real Estate
• Legal Services, CPA firms, and other similar professional services needed by the sectors and activities exempted from the lockdown that cannot be done remotely
• Attorneys in civil cases summoned by the courts
• Notaries in the performance of duties authorized by the Puerto Rico Supreme Court by Resolution EM-2020-09 of April 24, 2020
• Notary services for any transaction required by businesses
• Information technology
• Department of Consumer Affairs (D.A.C.O.) inspectors
• University of Puerto Rico laboratory inspectors
• University educational services. This sector is authorized to use their facilities to offer educational programs and student services remotely. Personnel authorized to visit the institution’s system information and telecommunications personnel, teachers and administrative personnel necessary to maintain the remote and adequate operation of the education services, are also allowed to provide services.

Commercial and Other Establishments

• Hardware stores
• Maintenance, repair, inspection and sale of car parts to the general public
• Laundry services, including dry cleaners and laundromats
• Ornamental agriculture
• Research laboratories of university institutions
• Moving services within and outside of Puerto Rico
• Services to docks and airports
• Processing services of electronic transactions
• Phone or online sales provided that warehouses will be allowed to open solely for the dispatch of orders by either pick up or delivery
• Elevator inspection work
• Repair and installation services of air conditioners
• Transportation services limited to taxi drivers and public carriers who wish to perform merchandise delivery services according to the National Transportation Safety Board regulations
• Data operation centers
• Vehicle inspection centers
• Animal shelters
• Armory services for the security sector
• Logistics and transport: customs agents, maritime and ground cargo, warehouse services and distribution to third parties and distribution of detergent, disinfectant and hygiene and cleaning products
• Design, sale and installation of fire prevention systems
• AutoExpreso (toll roads) personnel solely for the recharging and payment of tolls

Banking

Financial and mortgage services will be allowed in the financial institutions by appointment only and processes must be advanced by electronic means.

Telecommunications Critical Infrastructure

The installation, repair, maintenance and rehabilitation of power production systems based on alternate or renewable energy, repair and maintenance of streets, roads and highways, as well as the repair and maintenance of private infrastructure to ensure the continuity of the operations and services, are exempted from the EO. In addition, the sale, installation and maintenance of infrastructure and equipment necessary to prepare for the hurricane season, are now also allowed in accordance to the EO.

In-Person Primary and Specialized Medical Services

These services will continue to be authorized, with an emphasis on tele-medicine.  In-person visits will be permitted if the provider certifies it has adopted security, mitigation and social distancing protocols, and avoids the congregation of people in waiting areas by requiring prior appointments.

Elective ambulatory non-esthetic surgeries are allowed. It is suggested that the patient be tested for COVID-19 prior to the surgery.

Dentists and Optometrists

These offices will be allowed to re-open, by appointment only, and so long as they comply with social distancing protocols, and take all necessary safety measures to safeguard the health of their employees. They should also avoid the congregation of patients in waiting areas. In the case of dental offices, they are only allowed to conduct emergency procedures.   

Gas Stations and Pharmacies

These businesses are now permitted to operate to offer regular services seven days a week so long as they comply with the curfew and lockdown rules. The services that will now be permitted include lottery sale and inspections centers, although the extension of car registration renewals continues to be in effect.

Supermarkets

Supermarkets will continue to operate between 5:00 a.m. and 8:00 p.m., with delivery services until 10:00 p.m.

Public Sector

Non-essential workers will continue teleworking. A maximum of five non-essential employees will be authorized to go to the workplace two days a week.

Construction and Manufacturing Industries

As of May 11, 2020, EO-038 will allow construction and manufacturing industries to resume operations provided they implement strict safety measures to mitigate COVID-19 transmission and protect the health of all workers. It will be required that before operations begin employees receive training, orientation and continuous supervision regarding new safety measures in the workplace.

Construction is authorized in commerce and establishments that are not exempted from the EO, as long as they implement the required security measures necessary to prevent the spread of COVID-19 when their operations begin. This includes construction in marinas in relation to the preparation for the hurricane season, repair and reconstruction projects due to a natural disaster or emergency, and private, residential and governmental construction.

Assuming there is no rebound in COVID-19 cases, the government will assess if industries such as retail, restaurants, barbers and beauty salons will be allowed to reopen in the weeks of May 18 and 25, 2020.

Lockdown and Curfew

The lockdown and curfew have been extended until May 25, 2020. People are still expected to remain home, but are allowed to go out for one of the following listed reasons:

• Between 5:00 a.m. and 7:00 p.m.
  • To attend medical appointments, or to travel to the hospital or laboratory
  • To acquire food, medicines and/or first aid products
  • To go to any of the establishments exempt from the application of the Order for necessary or urgent purposes
  • To receive any of the exempt services specified in the Order
  • To offer any of the exempt services specified in the Order.
• From 5:00 a.m. to 3:00 p.m., the EO will allow physical activities such as running, jogging, walking and cycling, and walks with children, so long as they maintain a six-foot distance from other individuals and use face coverings (parks, gyms, beaches, public beaches, and tracks will remain closed).

Exposure Control Plans

With respect to the COVID-19 Exposure Control Plans, EO-038 requires each employer of every exempt sector to have one ready before restarting operations.  These uniquely tailored plans must be based on the guidelines established by OSHA in March 2020 and adopted by the Puerto Rico Occupational Safety and Health Administration (PROSHA), the Puerto Rico Department of Labor and Human Resources (PRDOL) and the CDC, and be submitted to the PRDOL, together with a self-certification. The self-certification form will be made available on the PRDOL website.

The EO further orders the Secretary of the PRDOL to establish the procedures to be followed in order to comply with the EO’s mandate and, together with the PR Department of Economic and Commercial Development (DECD), to give it the broadest publicity.  The self-certification is a requirement for beginning operations. Once the certification is submitted to the PRDOL, it will be understood that the employer’s facilities will adopt the required exposure controls and will be able to begin operations.  Importantly, those exempt employers that have been operating under the authority of previous EOs must also be diligent with respect to preparing a Plan and submitting a self-certification as soon as possible. 

Employers are reminded that they must not retaliate against employers for exercising rights protected by employment legislation, including the recently enacted Families First Coronavirus Response Act (FFCRA).  By the same token, employers must endeavor to protect those employees classified as being particularly vulnerable to contracting COVID-19, and to take their situation into account as personnel is recalled to the workplace. 

Employers needing assistance with creating a COVID-19 Exposure Control Plan that meets OSHA’s and the PRDOL’s parameters, and that is specifically tailored to their particular circumstances, workplace risks and business needs, are encouraged to consult counsel.