On 1 August 2019, the government of Puerto Rico introduced a new leave for public and private sector employees to handle the effects of sexual harassment in employment, domestic violence, sexual assault, stalking and child abuse. Fifteen days of unpaid leave is now offered annually for such circumstances.
Act No. 83-2019 (the “Act”) applies to all employees and circumstances for taking the leave. The leave may be used to accommodate situations involving family members, which includes their spouse or domestic partner, children, parents and any other minor or elderly person under their custody or guardianship. The new leave can be taken in addition to any other leave that the employee might be entitled to under law.
Notification for the leave
Employees must notify their employer (there is no formality to the type of communication) of their intention to take the leave at least two days prior to the absence. In case of emergency or imminent danger, employees can notify the employer within two days after the first day of absence.
Use of the leave
The new special leave may be taken on a fractioned or intermittent basis and should only be used to deal with the non-exhaustive list of activities outlined in the Act. The list includes the need to obtain legal assistance and a restraining order, look for a safe place, get medical treatment and more. A police report is not needed to qualify for the new leave. However, employers may request the employee provide evidence of the sexual harassment in employment, domestic violence, sexual assault, stalking or child abuse. Such evidence may include a court order, a medical report or other certification from a professional (lawyer, social worker, religious leader, etc.).
Job protection and confidentiality
The employer is mandated to grant the requested leave and must keep all information regarding the employee’s personal situation confidential. The employer is also obligated to allow the employee to return to the same position at the end of the leave period. The employer cannot discriminate or make any adverse changes to the employee’s employment conditions.
The Act allows employees to request reasonable accommodation or flexible working arrangements to address their situation. Reasonable accommodation can include a change in working time or location. Requests should be in writing and may only be denied if it is “unreasonable.” However, the Act does not define what qualifies as unreasonable at this time.
Given that the Act is very detailed and exhaustive, employers are encouraged to establish written policies and procedures to ensure that the new rules are appropriately addressed. In addition, employers may want to consider providing their employees with adequate training on the requirements introduced by the new regulation. Failure to comply with the Act is subject to a penalty up to USD 5,000, damages suffered (if any), and back-pay (if applicable).