On November 15, 2021, Puerto Rico Governor Pedro Pierluisi issued Executive Order No. 2021-075 (EO 2021-075), which integrates prior COVID-19-related orders still in effect and, notably, includes vaccine/testing requirements for employers with over 50 employees. EO 2021-075 took effect immediately, and per its terms, will continue until the Emergency Declaration for COVID-19 has ended or another executive order renders it null.
EO 2021-075 mandates the following:
Quarantine and Isolation Mandates
The government maintains a 14-day quarantine mandate for anyone confirmed or suspected of being exposed to COVID-19, whether or not they have any symptoms. The EO authorizes the Department of Health to reduce the quarantine period to a minimum of 10 days without testing, or a minimum of seven days with a negative test result from a test administered at least five days from exposure. Ten-day isolation mandates for individuals confirmed to have contracted COVID-19 remain in place. If an individual is asymptomatic or presents any moderate or light symptoms, they can end isolation 10 days after their first symptom, provided they show no signs of fever without the aid of medicine for over 24 hours, or prove other COVID-19-related symptoms have improved. Those with positive COVID-19 results do not have to wait to obtain a negative test result to end isolation, but must adhere to the above isolation periods.
Government Employees and Contractors
Government employees or contractors for in-person work
Employees or contractors who work in person in public agencies of the Executive Branch, as well as Executive Branch contractors and their employees who work in person or visit government offices, must be fully vaccinated or provide a negative COVID-19 test result (for which they are responsible in obtaining) every seven days, or a positive test result with a letter from a certified health provider or a government health official certifying the person is fully recovered and ready to appear in public places. Executive Branch contractors have the responsibility of ensuring that their employees comply with the provisions of EO 2021-075 and informing the contracting agency of compliance with said EO. For the purpose of this requirement, “government employees” include all those working at public corporations.
Municipal employees
Municipal employees must also comply with any of the three previously indicated conditions. Given that these employees are now included in the vaccination mandates, they will comply by providing evidence that they began the vaccination process with the first dose within 15 days of November 15, 2021. They must subsequently certify to their employer that they have received the second dose of the vaccine in a two-dose vaccination series within 45 days of November 15 (i.e., by December 30, 2021).
Noncompliance
Any government employee, including municipal and executive branch employees, who do not comply with the vaccination or testing mandates may not work in person. Therefore, employers should engage in applicable measures, including employee paid or unpaid leave. Any government contractor or contractor employee will not be allowed to work in person if they do not comply with the EO’s mandates. The government entity may engage in the necessary contractual measures, including but not limited to the cancellation of said contract. For purposes of EO 2021-075, "employee" shall be interpreted broadly and include any natural person who works physically or virtually for a salary, payment, or any type of compensation.
Health Sector
All employees in the health sector must be fully vaccinated. Religious or medical exceptions apply, provided that the employee submits a negative COVID-19 test every seven days, or a positive test result with a letter from a certified health provider or a government health official certifying the person is fully recovered and ready to appear in public places. The testing option is available for employees in the health sector only when they prove a medical or religious exception, and it is the employee’s responsibility to provide the tests.
Education
In order to physically attend school, all school personnel, including any contractors of schools, post-school educational institutions, or universities, must be fully vaccinated, provided no religious or medical exceptions apply.1 If an exception applies, the employee must provide a negative COVID-19 test every seven days, or a positive test result with a letter from a certified health provider or a government health official certifying the person is fully recovered and ready to appear in public places. It is the employee’s responsibility to provide the tests.
For both health sector employees and education institution personnel, in order for medical exceptions to apply, the employee or contractor must demonstrate that their immune system is compromised, they are allergic to vaccines or that they have some other medical reason that prevents them from getting vaccinated. This must be certified by an authorized physician in Puerto Rico. Additionally, the doctor must certify the duration of the medical condition and whether it is temporary or permanent. If temporary, once the condition ceases, the person must comply with the vaccination requirement.
For religious exceptions to apply, the employee or contractor must present a certification detailing that that their sincerely held beliefs, practices or religious observances prevent them from getting vaccinated. This includes the nature of their objection; an explanation of how complying with the vaccination mandate is a substantial burden or conflicts with their sincerely held religious beliefs, practices, or observances; how long they have held said religious beliefs; the type of vaccines they object to; and whether they have received any other vaccines recently. Religious exceptions do not protect social, political, economic or personal objections. Employers may request additional information regarding sincerely held beliefs, but the employer or the school will not be able to question the reasonableness of said religious belief.
Private Employer Requirements
As it pertains to private employers, EO 2021-075 reiterates some of the measures established months ago for employers performing work in the health, food and tourism industries. Specifically, employees working in hotels, inns, restaurants (including "fast food," "food courts" and cafeterias), bars, "sport bars," theaters, cinemas, coliseums, convention and activity centers that sell alcoholic beverages or prepared food, beauty salons, barbershops, spas, gyms, childcare centers, supermarkets, grocery stores, casinos and shops located in gas stations, need to comply with one of the following:
- Present evidence of being fully vaccinated against COVID-19 with an approved or licensed vaccine by the Federal Drug Administration or the World Health Organization.
- Present 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 care professional,2 and submit to the employer the negative result of such test at least every seven days, or
- Present a positive COVID-19 result from the past three months, along with documentation of their recovery, including a letter from a certified health provider or government health official certifying that the person is recovered and ready to appear in public places.
Notably, EO 2021-075 requires that all employees working at employers with over 50 employees, regardless of the industry, must comply with any of the three conditions indicated above. Recognizing this is a new mandate, EO 2021-075 states that it will be sufficient for employees to present evidence that they began the vaccination process with the first dose by November 30, 2021. In addition, employees must comply with and certify to their employer the administration of the second dose, if the type of vaccine that was administered so requires, by December 30, 2021. Employees failing this requirement shall not be allowed to work in person and the employer may take appropriate measures, including allowing such employees to take sick leave or unpaid leave, as applicable.
The EO urges but does not require that employers allow employees to be vaccinated during working hours and to allow the necessary time to address side effects, if any. For these purposes, the EO suggests employers allow use of accrued sick leave or unpaid leave.
For purposes of the EO, the term "employee" includes any natural person who works in person, including contractors, but not suppliers. For purposes of the vaccination requirement as set forth in this EO, persons who voluntarily serve in these locations shall also be considered employees.
Requiring Proof of Vaccination Status
It is the responsibility of the employer to request its employees present the immunization certificate ("COVID-19 Vaccination Record Card" or "Vacu ID") or other document attesting that the employee has completed or initiated the vaccination process against COVID-19, as applicable, or the negative COVID-19 result from a qualified SARS-CoV-2 viral test, or the positive COVID-19 result within the past three months along with documentation of recovery. Likewise, EO 2021-075 makes it the responsibility of the employee to present their immunization certificate or document proving that they have completed or started their vaccination process against COVID-19, as applicable, or the negative COVID-19 result from a qualified SARS-CoV-2 viral test, or a positive test result from the past three months along with documentation of recovery.
Future Guidance
The EO authorizes The Department of Health, the Office of Administration and Transformation of Human Resources of the Government of Puerto Rico, the Department of Labor and Human Resources, the Puerto Rico Occupational Safety and Health Administration, the Department of Education and the Tourism Company, in coordination with the Office of the Governor’s Legal Counsel, to issue guidance interpreting, defining and/or modifying the EO.
Violations/Penalties
The EO further establishes that it is a misdemeanor if any person or business fails to comply. Accordingly, any person or business found in noncompliance could face a penalty of imprisonment that will not exceed six months or a fine that will not exceed $5,000 dollars, or both penalties, at the discretion of the court and any applicable law.
Preemption
The EO acknowledges that it does not intend to conflict with any guidance or order issued by any federal agency and states that it is to be interpreted in harmony with the federal provisions and their applicable jurisprudence, regarding vaccination for employees of the public and private sectors. In other words, at this time employers covered by the Healthcare Requirements issued by the Centers for Medicare and Medicaid Services of the Department of Health and Human Services or President’s Biden Executive Order 14042 applicable to federal contractors, still need to comply with such federal requirements.
Footnotes
