On March 26, 2020, the United States Department of Labor (DOL) issued additional questions and answers (Q&As) that further explain employer and employee rights and responsibilities under the federal Families First Coronavirus Response Act (FFCRA). The DOL’s guidance directly impacts those private-sector employers in Puerto Rico that have closed their worksites in compliance with Executive Order OE-2020-023 (EO) issued by Governor Wanda Vázquez Garced on March 14, 2020, and had hoped to be able to provide their employees paid leave under the FFCRA.  This article addresses certain Q&As that affect most employers and employees in Puerto Rico.

The EO, which will be extended until April 12, 2020, essentially requires the closing of all businesses that are not considered essential in nature, and establishes a virtual lockdown for all residents of Puerto Rico, along with a strict curfew.  Under this directive, most businesses in Puerto Rico have been closed since 6:00 p.m. on March 14, 2020 and, unless again extended, will remain closed until April 12, 2020.  As a result, most private-sector employees have been sent home without pay or are using available sick or vacation leave. 

After the FFCRA was signed into law, the Puerto Rico Department of Labor (PRDOL) issued guidance in connection with the use of paid and unpaid leave for private-sector employees.  In its guidance, the PRDOL parted from the premise that the FFCRA leave would be available to private-sector employees whose employers were subject to the closure and lockdown rules of the EO, presumably under the section of the FFCRA that provides leave when the employee “is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.”  The Q&As issued by the DOL on March 26, 2020, however, have made clear that this is not the case. 

Specifically, the Q&As expressly exclude employees who are not working because their worksites have closed “for lack of business or because it was required to close pursuant to a Federal, State or local directive.”  In other words, employers that are closed under the EO cannot offer their employees leave under the FFCRA and, if they voluntarily choose to pay their employees for the time off without charging it to available leave (sick or vacation), cannot request reimbursement for those payments from the Internal Revenue Service (IRS).

Therefore, as it relates to Puerto Rico, the direct effect of the Q&As is that many employees will not be able to enjoy leave under the FFCRA’s Emergency Paid Sick Leave provisions to the extent that the reason for their lack of work is, exclusively, the closure of their employer’s operation under the EO.  In essence, then, only employees who have continued working following the EO either because they work for a business exempted from the EO as essential or have continued working through telecommuting arrangements with their employer, and whose absence is caused by a qualifying reason, will be entitled to FFCRA Emergency Paid Sick Leave once the Act becomes effective on April 1, 2020.  In light of these developments, employers that have operations in Puerto Rico should work with knowledgeable counsel to verify coverage and ensure compliance with the Act.