Booster Mandate: Covered Employees in Puerto Rico Must Comply by January 31st

On December 31, 2021, Puerto Rico Governor Pedro Pierluisi issued Executive Order No. 2021-87 (EO) requiring first responders and certain private sector personnel to receive the COVID-19 vaccine booster shot in order to be considered fully vaccinated. The EO took effect immediately and requires covered employees to receive the booster shot by January 31, 2022. Following CDC guidelines, this EO provides that eligibility for a booster shot is available for individuals age 18 or older, when at least six months have passed since receiving the Pfizer or Moderna vaccines or at least two months after receiving the Johnson & Johnson vaccine. Non-eligible employees will have 30 days from the time they become eligible to comply with the new vaccine booster requirement.

Covered Private Sector Personnel

All employees working at restaurants, including fast food, food courts, and cafeterias, bars, “chinchorros,” small cafeterias, sport bars, supermarkets, minimarts (including WIC-authorized establishments), and convenience stores at gas stations who are currently vaccinated against COVID-19 must receive the booster shot,1 if eligible, to be considered fully vaccinated. These employees are subject to the options provided by EO-2021-075, and must 1) provide proof of being fully vaccinated, including the booster shot for eligible individuals; or 2) get tested,2 at their expense, every seven days and provide the results to their employer at least every seven days; or 3) provide a positive COVID-19 test result from within the previous three months, with documentation of their recovery, including a letter from a certified healthcare provider certifying they have recovered.

Similar to other executive orders mandating vaccines, this EO encourages employers to allow their employees to be vaccinated during working hours and to grant them time as necessary to take care of side effects, if any. Employees suffering from such side effects may use their accrued sick leave, if any. Employers, at their discretion, may also grant special vaccination leave. Noncompliance will prevent employees from working in person and employers may take the applicable measures, including allowing said employees to avail themselves of compensatory time off, applicable regular leaves or a leave of absence.

Covered Emergency Response Personnel

Additionally, the emergency response personnel of the Department of Public Safety and the bureaus within it,3 correctional officers of the Department of Corrections and Rehabilitation, and any other response personnel as established by the Department of Health, are also covered. Any of these employees who were not vaccinated and were providing a weekly test result in order to attend work in person in compliance with prior executive orders, will have 15 days from December 31, 2021 to furnish proof of having begun the vaccination process. These employees will also have 45 days from December 31, 2021 to submit proof of having completed the administration of the second dose. The employee shall subsequently receive a vaccine booster shot as soon as they are eligible. Accordingly, in the case of emergency response personnel, the EO eliminates the alternative of weekly testing and must now become fully vaccinated unless the employee has been granted a reasonable accommodation for covered medical or religious reasons.

See Footnotes

1 The booster shot, as defined by the CDC, refers to the additional doses of the vaccine administered in order to boost or restore the protection of the primary vaccine, which could have declined over time.

2 Through a qualified SARS-CoV-2 viral test (Nucleic Acid Amplification Test (NAAT) or antigen tests) approved by the FDA and processed by an authorized health professional.

3 The Puerto Rico Police, the Firefighters Corps, the Medical Emergency Corps, the State Emergency Management and Disaster Administration Agency, the 9- 1-1 Emergency System, and the Special Investigations Bureau.

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.