New executive order expands employees vaccination requirements

January 17, 2022

On November 15, 2021, the Governor of Puerto Rico issued Executive Order number OE-2021-075 (“EO”) to implement different alternatives to control the exposure to COVID-19. As part of the measures imposed, the EO orders each employee who works for a private employer with 50 or more employees to comply with one of the following conditions:

  1. Present to his employer evidence of full vaccination against COVID-19 with a vaccine approved or authorized by the Food and Drug Administration (“FDA”) or any other vaccine included in the list of emergency use issued by the World Health Organization (“WHO”);
  2. Present at least every seven (7) days to his employer the negative result of a qualified viral SARS-CoV-2 (molecular or antigen) test approved by the FDA and processed by an authorized health professional; and
  3. Present to his employer a positive result of a COVID-19 test performed during the past three (3) months, together with documents certifying his recovery, including a letter from a certified health provider or another government health official that certifies that he is recovered and ready to appear in public places.

It is essential to note that the EO does not require the employee to request from his employer an exemption from the mandatory vaccination based on a health condition or religious belief. Therefore, if the employee does not comply with the first condition, he will have the obligation to comply with one of the other two. This change does not apply to the health sector or the education sector. In those industries, each employee will continue to be obligated to get vaccinated, except if he qualifies for an exemption due to a health condition or religious belief and requests it.

Recognizing its immediate effect, the EO allows the employee until November 30, 2021, to comply with the first condition by presenting to the employer evidence that they began the vaccination process with the first dose, provided that he must submit to the employer, on or before December 30, 2021, evidence of the administration of the second dose, if the chosen vaccine type requires two (2) doses. The EO requires each employer must request the COVID-19 vaccination record card or Vacu ID (issued by the “CESCO Digital” mobile app) or any other document that certifies that the employee has completed or initiated the vaccination process against COVID-19, or the complaint result of a COVID-19 test with the required documentation in the case of positive result.

Any employee who fails to comply with the applicable conditions established in the EO, will not be allowed to work in-person at the employer’s facilities. Consequently, the EO allows the employer to take any measures that may apply in such circumstances. The EO includes as examples allowing the employer to use regular accrued leaves or a leave of absence without pay.

The EO encourages all employers to allow their employees to get vaccinated during working time and grant any time necessary for an employee to recover from any side effects of the vaccine by using the employees’ accrued sick leave, if any, or granting, at their discretion special vaccination leaves.

It is important to underscore that the EO closes the section pertinent to the vaccination of employees by instructing all employers covered by its provisions that the term “employee” shall be interpreted in the most comprehensive and broad manner to include all natural persons that work physically in the employer’s facility - including its owner, entrepreneur, administrator (and any similar functions), contractors (excluding suppliers) - in exchange for a salary, wage, compensation or any type of payment from the employer. The definition also includes persons that provide any type of service to the employer in a voluntary manner (without receiving any payment or compensation).

Employees that work for employers in certain industries that -regardless of the number of employees- already had to comply with mandatory vaccination against COVID-19 imposed by previous Executive Orders continue to be required to comply with their obligation. In the specific case of employees that work for employers in the health sector or the education sector, the EO maintains as sole exception to exempt from the mandatory vaccination against COVID-19 that they qualify for a health condition exemption or a religious belief exemption, although it eliminated the requisite for the latter to be supported by a sworn statement.

OSHA NEW EMERGENCY TEMPORARY STANDARD IS STAYED

Pursuant to the Occupational Safety and Health Act of 1970, employers are responsible for providing a safe and healthful workplace to its employees. The Occupational Safety and Health Administration (“OSHA”) has the duty to facilitate that said conditions are complied with for workers throughout the United States by means of the implementation and execution of standards, in addition to provide trainings, education and assistance.

Consistent with said purposes, on November 4, 2021, OSHA issued a new Emergency Temporary Standard (“ETS”) requiring employers with one hundred (100) employees or more to implement policies requiring their employees to be vaccinated against COVID-19 or, if they decide to not receive the vaccine, to use face masks and get tested for COVID-19 weekly. The mandate has the stated purpose of protecting more than 84 million workers from the spread of COVID-19. OSHA estimates that the mandate will save thousands of lives and prevent more than 250,000 hospitalizations because of the exposure to COVID-19 in the workplace.

However, on November 6, 2021, the Unites States Court of Appeals for the Fifth Circuit stayed the new OSHA ETS temporarily – until the briefs were presented- accepting the argument that there is cause to believe that it raises “grave statutory and constitutional issues.” Days later, on November 12, 2021, the same Court stayed the OSHA ETS until the controversy is decided on its merits. On November 13, 2021, in compliance with the Court Order, OSHA issued an official communication suspending all activities related to implementation and compliance of its ETS until the pending litigations are resolved. Since several similar lawsuits are pending, on November 17, 2021, all cases were consolidated for the resolution on the merits by the United States Court of Appeals for the Sixth Circuit.

We will keep monitoring the pertinent developments on this subject to inform you to assist you in making the appropriate decisions as required. As always, do not hesitate to contact us if you have any questions or need additional information.

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