Puerto Rico Secretary of Labor Issues Opinion on Criteria for Vacation and Sick Leave Accrual for Part-Time Employees Under Act 180 as Amended by Act 41-2022

On June 20, 2022, Puerto Rico’s governor approved Act 41-2022, which includes a series of amendments to Puerto Rico’s Act 4-2017, better known as the Labor Transformation and Flexibility Act (LTFA), and other employment legislation.  One of the impacted statutes is Act 180-1998, Puerto Rico’s Vacation and Sick Leave Act, which establishes the vacation and sick leave accrual entitlement for non-exempt employees in the private sector. 

Among other things, section 11 of Act 41-2022 amends Article 4 of Act 180-1998 to establish the accrual entitlement of employees, commonly known as “part-time employees,” who work less 115 hours, but at least 20 hours per week.  Should the employee satisfy both requirements regarding hours worked, they are entitled to accrue a half day of vacation and a half day of sick leave per month, except in the case of Puerto Rico employers with 12 or fewer employees, in which case the vacation accrual rate shall be reduced to one quarter day per month. Because of the Act’s reliance on two different time-worked concepts—to wit, total weekly and monthly hours worked—the Secretary recognized it has led to varied interpretative proposals and contrary opinions, particularly as to whether compliance with the weekly hours requirement is based on an average of weekly hours worked during a given month, or, alternatively, whether the employee must work at least 20 hours every week of the month.  After reviewing the Act’s legislative history, the Secretary, in Opinion 2022-03, adopts the latter approach.

While recognizing that implementing Act 41-2022 may be difficult to manage, the Secretary also notes that the law is clear and free from ambiguity.  The Opinion concludes that the statutory language effectively limits a part-time employee’s right to accrue vacation and sick leave and ultimately requires that the employee meet the minimum 20-hours-worked requirement every week of a given month in order to accrue vacation and sick leave during said month.  The Opinion reasons that had the Legislature sought a different interpretation, it would have included a range of monthly hours for the reduced accrual, but, even in light of express recommendations to that effect, it did not.  The Opinion further clarifies that the weekly hour requirement must be met continuously and during every week of the month and, consequently, that hours worked during weeks that include days in two consecutive months shall be considered for purposes of accrual during both months. 

Before concluding, the Secretary notes that his interpretation does not prevent an employer from establishing a different rate of accrual in the case of part-time employees that are more beneficial to the employee.  By way of example, the Opinion notes that an employer could provide that employees who work more than 80 hours, but less than 115 hours a month, will accrue vacation and sick leave at the reduced rate of one half a day applicable to part-time employees (or, depending on employer size, one quarter day of vacation and one half day of sick time) under Act 41-2022, or at a more generous rate as the employer deems appropriate.  According to the Secretary, “employers themselves best understand their respective operational realities in connection to implementing the changes imposed by Act 41-2022.”

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.