Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

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Governor Issues New Executive Order Providing for New Vaccination Mandates

New Order or Decree

Authors: Anabel Rodriguez-Alonso, Capital Member, and Irene Viera Matta, Associate – Schuster Aguiló | LLC Littler

On November 15, 2021, Puerto Rico’s Governor issued Executive Order No. 2021-075 (EO 2021-075), which integrates prior COVID-19-related orders still in effect and, notably, includes vaccine/testing requirements for employers with over 50 employees. EO 2021-075 took effect immediately, and per its terms, will continue until the Emergency Declaration for COVID-19 has ended or another executive order renders it null.

The EO acknowledges that it does not intend to conflict with any guidance or order issued by any federal agency and states that it is to be interpreted in harmony with the federal provisions and their applicable jurisprudence, regarding vaccination for employees of the public and private sectors. In other words, at this time employers covered by the Healthcare Requirements issued by the Centers for Medicare and Medicaid Services of the Department of Health and Human Services or President’s Biden Executive Order 14042 applicable to federal contractors, still need to comply with such federal requirements.

Tis the Season for Back-to-Back COVID-19 Related Executive Orders

New Order or Decree

Authors: Anabel Rodriguez-Alonso, Capital Member, and José Maymí Gonzalez, Associate – Schuster Aguiló | LLC Littler

In two days, Puerto Rico’s Governor issued back-to-back executive orders (EO) establishing greater restrictions on mass activities, food and drink establishments, and air passengers arriving on the Island. The first, EO-2021-080, in essence, requires that all closed- or open-air establishments that promote the accumulation of people must require the following: (1) proof of vaccination; and (2) a negative COVID-19 test result, or a positive COVID-19 result from the last three months. The second, EO-2021-081, in its first section focuses on passengers arriving to the Island. In its second section, EO-2021-081 turns its attention to a wide swath of businesses and places where foods and drinks are provided.

These businesses must require all visitors to: (a) provide proof of vaccination; (b) a negative COVID-19 result; or (c) a positive COVID-19 result from the last three months. The restrictions in both EOs attempt to stem the growing wave of COVID-19 cases caused, in part, by the arrival of the Omicron variant to Puerto Rico and are already in effect.

New Executive Order Mandates Booster Shots for Health and Education Sectors

New Order or Decree

Authors: Anabel Rodriguez-Alonso, Capital Member, and José Maymí Gonzalez, Associate – Schuster Aguiló | LLC Littler

On December 22, 2021, Puerto Rico’s Governor signed EO-2021-082, effective as of December 27, 2021. This EO breaks new ground by requiring for the first time a booster shot for certain segments of the populace. EO-2021-082 requires that any person older than age 18 who is fully vaccinated and meets the following criteria, must receive a booster shot: (1) people who work in health facilities, regardless of their job functions; and (2) people who work in schools, educational centers, and universities, regardless of whether the same are public or private. This latter portion includes contractors.

Notably, students are not required to receive a booster under this EO. Covered personnel have until January 15, 2022, to receive their booster shot; failure to meet this deadline will impede such employees from working in person.

Implicit Consent for Arbitration Agreements in the Employment Context

Precedential Decision by Judiciary or Regulatory Agency

Authors: Lourdes C. Hernández-Venegas, Capital Member, and Ana B. Rosado-Frontanés, Capital Member – Schuster Aguiló | LLC Littler

In a recent decision, the Puerto Rico Supreme Court (PRSC) reinforced the strong public policy favoring arbitration agreements in Puerto Rico, validating continued employment as implicit consent for such agreements. The PRSC recognized that the Federal Arbitration Act (FAA) applies in the employment context, that its provisions are triggered when there is an interstate transaction implicated and that it preempts state laws on the subject. Given contract law concepts, the FAA requires only that arbitration agreements be in writing; thus, sending the agreement through electronic means satisfies this requirement and the parties’ physical signatures are not required to validate the Agreement.

Importantly, the PRSC noted that the Agreement was clear in that it was deemed accepted if the employee continued to work for the company for 60 days after the receipt of the Agreement. Thus, written approval was not required. This case represents further certainty for employers that have adopted or are planning to adopt arbitration agreements in connection with employment claims, especially those covered by the FAA.

Damages Calculations Involving Double Penalties and Alternate Income Streams

Precedential Decision by Judiciary or Regulatory Agency

Authors: Anabel Rodriguez-Alonso, Capital Member, and Irene Viera Matta, Associate – Schuster Aguiló | LLC Littler

In a recent case, the Puerto Rico Supreme Court (PRSC) determined that when a plaintiff prevails in a discrimination lawsuit, any award of back pay (lost wages) to be granted must be reduced by any income earned from other means before applying the double penalty provided by local anti-discrimination laws. After considering the restorative and non-punitive nature of the applicable labor statutes, as well as the court’s precedent, the PRSC determined that any interim earnings obtained by a plaintiff by other means had to be deducted from the total amount of assets plaintiff did not receive (that is, back pay or front pay) prior to imposing the double penalty provided by law.

The PRSC further noted that deducting the injured party’s alternate income after imposing the double penalty would improperly inflate the award by failing to account for actual income received from other sources. Consequently, the PRSC ruled that the previous calculation made by the appellate court was incorrect, insofar as it deducted the income obtained by the plaintiff after applying the double penalty.