Puerto Rico Governor Pedro R. Pierluisi has issued an Executive Order (EO) requiring all private sector employers with at least 50 employees to apply COVID-19 vaccine or testing requirements.
Under EO 2021-075, which is similar in scope to the Occupational Safety and Health Administration’s (OSHA’s) recent temporary emergency standard, such employers must require their employees to provide:
Evidence of COVID-19 vaccination;
A negative test result at least every seven days; or
Certified proof of recovery in the past three months from COVID-19.
Although the EO went into effect immediately, insured employees have 45 days, or until December 30, 2021, to complete their vaccination cycle and submit a vaccination certificate to their employers.
The EO also consolidates into a single document the requirements imposed by previous executive orders. Requirements such as verification of vaccination status for visitors to certain industries, including restaurants, beauty salons, barber shops, beauty salons, spas, gyms, casinos, theaters and other institutions in the food and entertainment industry, remain in effect.
The EO determines that private sector employers with fewer than 50 employees do not have to comply “for the time being”. However, the EO says these employers are “encouraged” to take action, such as requiring a vaccination certificate or proof of results.
Proof of vaccination
As with previous executive orders, employers must confirm vaccination by inspecting the immunization certificate (COVID-19 Vaccination Card or Vacu-ID) or a document certifying that the employee has completed or started the vaccination process. Employees must present a vaccination certificate to gain access to the work area.
Employees who work for employers with at least 50 employees must demonstrate that they have started the vaccination process by 30 November 2021. They must then certify to the employer that they have received the second dose of the vaccine, if the type of vaccine administered so requires. Workers have until December 30, 2021 to complete the vaccination process.
Employees who do not provide proof of vaccination and who have not been vaccinated must provide a negative test result for COVID-19 or a positive result of COVID-19 in the last three months and proof of recovery at least every seven days.
Employees who fail to comply with mandatory vaccination requirements or deliver the required results are not allowed to be physically in the work area. For such employee, the employer may take appropriate relevant measures, including allowing the use of relevant leave or unpaid leave, as applicable.
The EO is urging employers to allow employees to be vaccinated during work hours and allow the use of sick leave to remedy any side effects.
The term “employee” should be interpreted broadly and includes any person who physically works on a site, excluding suppliers. The term includes persons who provide services on a voluntary basis.
The EO eliminates the religious and medical exemptions provided for in previous executive orders. In addition, employees who have not been vaccinated (for whatever reason) must submit negative COVID-19 test results at least every seven days or provide certified proof of recovery from COVID-19 within the last three months. Preliminary executive orders required test results on the first day of the working week.
Failure to comply with the EO can result in fines of up to $5,000, six months in prison, or both, at the discretion of a court.
Jackson Lewis PC © 2021National Law Review, Volume XI, Number 320