‘Tis the Season for Back-to-Back COVID-19 Related Executive Orders in Puerto Rico

In two days, Puerto Rico Governor Pedro R. Pierluisi issued back-to-back executive orders (EO) establishing greater restrictions on mass activities, food and drink establishments, and air passengers arriving on the Island. These restrictions attempt to stem the growing wave of COVID-19 cases caused, in part, by the arrival of the Omicron variant to Puerto Rico. In this article, we break down the restrictions and measures established in the new EOs that will apply to passengers and patrons alike during the upcoming holidays.

     A.   EO-2021-080: Mass Activity Restrictions

On December 19, 2021, Governor Pierliusi signed EO-2021-080, effective as of December 22, 2021. In essence, EO-2021-080 requires that all closed- or open-air establishments that promote the accumulation of people (like theaters, stadiums, or convention centers) must require the following: (1) proof that the participant is fully vaccinated1; and (2) a negative COVID-19 result from a test performed by a professional (self-administered tests are not authorized) 48 hours prior to attending the activity. Alternatively, instead of the negative COVID-19 result, a person may show a positive COVID-19 result from the last three months with documentation showing their recovery.2

Note that the EO does not define “mass activity.” Instead, the EO makes a distinction between events with 500 or more people and events with fewer than 500 people. This distinction, however, is only relevant in the context of outdoor events, which require coordination with the Puerto Rico Department of Health if they involve 500 people or more; this distinction is not part of a definition of what constitutes a mass event.

     B.   EO-2021-081: Measures for Air Travelers and Restaurants

The day after issuing the above EO, Governor Pierluisi signed EO-2021-081, which enters into force on December 27, 2021. In its first section, EO-2021-081 focuses on passengers arriving to the Island. The EO establishes that all air passengers older than two years old arriving in Puerto Rico must provide, regardless of their vaccination status, a negative COVID-19 result from a test performed 48 hours prior to their arrival, or a positive COVID-19 result from the past three months with documentation showing their recovery. Unvaccinated passengers, however, will be required to also quarantine for seven days irrespective of their COVID-19 test result. Like previous EOs, if the air passenger fails to provide a COVID-19 test result upon arrival, they must then take a COVID-19 test within 48 hours. In this scenario, vaccinated individuals need not quarantine while they wait for their results. Failure to get tested within 48 hours of their arrival could result in fines and sanctions by the Puerto Rico Department of Health. This EO uses the same definition of “fully vaccinated” as EO-2021-080 and, likewise, recommends, but does not require, the booster shot. International travelers arriving in Puerto Rico must comply with the above and, also, with applicable federal provisions. Aircrew members staying in Puerto Rico for less than 72 hours, agents from federal and state governments, and active-duty military members are among the groups that are excluded from the travel requirements of EO-2021-081. Notably, persons that depart and return to Puerto Rico in less than 48 hours are also exempted from EO-2021-081’s provisions.

In its second section, EO-2021-081 turns its attention to a wide swath of businesses that includes restaurants, bars, movie theaters, and other places where foods and drinks are provided. Also included in the EO are hotels, barbershops, gyms, casinos, and others. These businesses must require all visitors to: (a) provide proof of vaccination; (b) a negative COVID-19 result from a test performed 48 hours prior to the visit; or (c) a positive COVID-19 result from the last three months with documentation showing recovery. Note that, unlike EO-2021-080, this EO allows for all three alternatives separately. Proof of vaccination can be presented either physically (with a vaccination card) or digitally (through the Vacu-ID). Persons visiting such covered establishments for pick-up or drive-through are exempted from the above requirements so long as they do not consume their food in the establishment. Nevertheless, the EO makes clear that operators of covered establishments may self-impose additional measures such as limiting business hours or their occupancy rate.

Unlike previous EOs, covered establishments are no longer exempted from the requirements if they limit their occupancy rate to 50%. In other words, under EO-2021-081, an operator of a covered establishment may require its visitors to show proof of vaccination or COVID-19 results and limit its occupancy rate, but may not choose the latter to be relieved from the former. Notably, beauty salons, barbershops, spas, and gyms are the sole exemption to this rule. That is, EO-2021-081 expressly provides that these businesses need not require their visitors to show proof of vaccination or COVID-19 results if they limit their occupancy rate to 50%.3

In the end, EO-2021-080 and EO-2021-081 are two halves of the same apple. They both provide emergency measures to prevent and limit the spread of the Omicron variant in places where people gather. The first imposes restrictions on activities with crowds. The second establishes measures for air passengers and patrons. Both come into effect during this busy holiday season. As Omicron continues to spread, and COVID-19 cases continue to rise, similar restrictive EOs are to be expected.

See Footnotes

Under EO-2021-080, a person is “fully vaccinated” two weeks after their last required dose of their COVID-19 vaccine. Proof of a booster shot is not required by the EO.

Children between the ages of five and eleven are excluded from this measure until January 31, 2022. For them, a negative COVID-19 test result, as discussed, will suffice. After January 31, 2022, these children will no longer be exempted and must comply with the full provision. Children under five years old may not participate in any such mass events.

3 Like the previous EO, EO-2021-080 exempts children between five and eleven years old until January 31, 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.