Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On August 1, 2019, just a day prior to his resignation as Governor of Puerto Rico, Ricardo Rosselló signed into law Act No. 83 of August 1, 2019 (“Act 83” or “the Act”), a very detailed leave statute applicable to public and private employers. Act 83, in general terms, provides employees with 15 days of unpaid leave per year for instances of gender or domestic violence, abuse of minors, sexual harassment in employment, sexual assault, lewd acts or aggravated stalking. This special leave also extends to family members, and allows employees to request reasonable accommodations, or flexible work conditions, to address these situations. Employees may request to take this leave through apportioned, flexible, or intermittent schedules.
Act 83 specifies certain requirements that employees must meet in order to qualify for this special leave. It also provides a non-exhaustive list of the various activities for which this leave may be used, such as to obtain information about and request a protective order; search for and obtain legal assistance; look for safe housing; visit any clinic, hospital or medical appointment; and obtain information and/or benefits from any type of help or services offered elsewhere.
The Act also imposes upon employers certain specific duties, such as the requirement to allow the employee to return to the same position upon return from leave. The Act allows employers to request that their employees provide documentary evidence to justify their use of the leave. The statute limits the types of documentation an employer can request for this purpose. The Act also regulates the timing and means upon which employees must notify the employer of their intention to partake of this leave and provide the requested documentation.
Employers may not discriminate against employees who use this leave under Act 83 and may not consider the leave taken as justification to take adverse employment actions, such as work-day reductions, shift changes, or negative performance evaluations. Act 83 specifically requires employers to reference the Act in their Domestic Violence Protocols and sexual harassment policies.
Act 83 also allow employees to request reasonable accommodations, or flexible work conditions, to address abuse situations faced by employees or their family members, as defined by the Act. According to Act 83, reasonable accommodation may include moving the employee’s physical place of work, modifying his or her schedule, or any other accommodation to permit the employee to receive the help they need. Requests for accommodation must be in writing and can be denied only when the request is unreasonable, but not prior to reviewing all possible alternatives.
Employers that fail to comply with Act 83 may be subject to penalties of up to $5,000, as well as all damages suffered and back pay.
As mentioned, Act 83 is a very detailed and extensive statute, containing a number of requirements that employers should take into consideration when evaluating requests for unpaid leaves as well as requests for accommodation. Thus, employers are highly encouraged to establish written policies and procedures to set out the responsibilities corresponding to employees and employers under the Act, as well as to provide adequate training to staff designated to handle situations involving Act 83.