As of February 20, 2018, Puerto Rico-based employees with a serious disease of a catastrophic nature are entitled to an additional, special paid leave of six days per year under Act No. 28 of January 21, 2018. All employees, including exempt, non-exempt, and temporary employees, are eligible for this special leave, provided that the employee with a covered illness or condition has (1) exhausted all of his or her accrued, statutory, or company policy-based sick leave; (2) worked for his or her current employer for at least 12 months; and (3) worked an average of 130 hours monthly within that 12-month period. Act No. 28 covers both private and public sector employers.
The Puerto Rico Health Insurance Administration (Administracion de Seguros Salud de Puerto Rico or ASES”) has and will continue to periodically define a serious illness or condition of a catastrophic nature for purposes of Act No. 28. Currently, the following illnesses or conditions are covered: 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 stages 3, 4, and 5. Under Act No. 28, an employer has the right to request from the covered employee a certification of diagnosis and treatment from a health care professional indicating that the employee suffers from and is receiving care for a covered catastrophic illness or condition.
An eligible employee may use the special paid leave under Act No. 28 through split, flexible, or intermittent schedules. The leave must be used within a calendar year and cannot be accumulated or carried over to a subsequent year. The employer must consider the use of this leave as “time worked” for purposes of the accrual of employee benefits; the employer, however, is not required to pay out any accrued but unused Act No. 28 special leave at the time of termination or resignation of the employee. Lastly, Act No. 28 has anti-retaliation provisions, as employers may not consider the use of this special leave to issue negative performance evaluations or otherwise take adverse action against employees, such as reducing their work hours, reclassifying their positions, or changing their work shifts.
It is incumbent upon the secretary of the Puerto Rico Department of Labor and Human Resources to file, receive, and investigate complaints of Act No. 28 violations and impose fines for those violations. An employer that fails to comply with, and deprives an eligible employee of the benefits provided by Act No. 28 may be subject to a fine of up to $2,000 USD.
Written by Enrique A. Del Cueto-Perez of Ogletree Deakins
© 2019 Ogletree, Deakins, Nash, Smoak and Stewart, P.C.