As we have previously discussed, the Puerto Rico Department of Labor (PR DOL) recently published the first edition of its Guidelines on the Interpretation of Puerto Rico's Employment Legislation (Guidelines), which includes the PR DOL's official statutory interpretation of nearly all of Puerto Rico's employment laws. The over 200-page Guidelines are divided into 15 chapters and cover a wide range of statutes. This Insight is the third in a series that will provide a chapter-by-chapter analysis of the most important topics addressed in the Guidelines, including an interpretation of key provisions of the Puerto Rico Labor Transformation and Flexibility Act, Act No. 4 of January 26, 2017 ("Act 4-2017" or "LTFA"), which made substantial changes to virtually all existing employment laws in Puerto Rico. This installment includes a discussion of Chapters 6 and 8, which provide guidance on vacation entitlement, sick leave, lactation breaks, and equal pay.
Chapter 6 – Vacation and Sick Leave
The PR DOL discusses LTFA's amendments to the PR Minimum Wage, Vacation and Sick Leave Act, Act No. 180 of July 27, 1998 ("Act 180-1998"). Our focus is on those areas for which the Guidelines provide further interpretation or information beyond that provided in the statute itself.
For example, the Guidelines state that if the employer and the employee agree to a probationary period of six months or less, once this period is complete, he or she will accrue vacation leave retroactively. Further, the Guidelines indicate that if the employer allows the employee to take vacation leave during his or her probationary period, that period will be automatically paused and will resume once the employee returns from vacation.
Regarding sick leave, the Guidelines indicate the PR DOL determined that employees eligible to take leave under the Caregiver's Leave Act, Act No. 251 of December 31, 2015, which allows employees to use accrued paid sick leave to care for qualified family members, are limited to taking five days of sick leave per year for this purpose.
Importantly, the Guidelines discuss Act No. 60 of January 27, 2018 ("Act 60-2018"), which amended Act 180-1998 to preclude employers from using sick-related absences as a criteria when evaluating employees' efficiency. Likewise, the employer cannot consider absences "properly charged to sick leave" to justify disciplinary actions such as suspensions or dismissals. The Guidelines provide the following examples of instances that cannot be taken into consideration as part of salary increases, promotions or the disciplinary process: absences of two days or less charged to sick leave (assuming sick leave balance is available) even when no...