The Governor of Puerto Rico recently signed into law Act No. 28 (“Act 28”), entitling all employees, including temporary employees, to take up to six days of paid leave per year if they suffer from a “catastrophic illness.” This bill, as presented to the Governor, defines catastrophic illnesses as those listed in the Health Insurance Administration of Puerto Rico Special Coverage (HIAPRSC), which currently includes: Acquired Immunodeficiency Syndrome (AIDS); Tuberculosis; Leprosy; Lupus; Cystic Fibrosis; Cancer; Hemophilia; Aplastic Anemia; Rheumatoid Arthritis; Autism; Post Organ Transplant; Scleroderma; Multiple Sclerosis; Amyotrophic Lateral Sclerosis (ALS); and Chronic Kidney Disease in levels 3, 4 and 5. To be entitled to this leave, employees must have worked for their employer for at least 12 months, and have worked an average of 130 hours per month during the previous 12-month period.
Article 3 of Act 28 lists the following requirements, among others, related to the use and enjoyment of this special leave:
- To use this special leave, the employee must have exhausted his/her sick leave.
- The six-day special paid leave may be used in each calendar year and may not be accrued or carried over to the next calendar year.
- If the employee resigns or is terminated, the special paid leave, or any remaining days, will not be paid out to the employee upon his/her termination.
- The use of this special paid leave will be considered “time worked” for purposes of accrual of all employee benefits.
- At the request of the employee, the employer must allow the use of the special paid leave either through split, flexible or intermittent schedules.
- No employer may consider the use of this special paid leave as a negative factor in an employee’s performance evaluation, or otherwise take adverse action against employees for taking this leave, such as by reducing their hours, reclassifying their position, or changing their shifts.
Act 28 provides that an employer may require its employees to obtain a medical certificate from a health professional who offers medical treatment for the catastrophic illnesses, to certify that the employee is indeed diagnosed with a catastrophic illness and continues to receive medical treatment. The request for medical information must, at a minimum, comply with the Health Insurance Portability and Accountability Act’s (HIPAA) privacy and confidentiality protections.
Finally, the statute empowers the Secretary of Labor and Human Resources of Puerto Rico to investigate, receive and file complaints as well as to impose penalties on employers that violate its provisions. Act 28 establishes that an employer faces a fine of up to $2,000 if it prevents an eligible employee from enjoying the benefits of the special paid leave.
Act 28 takes effect on February 20, 2018.