On March 2, 2018, Law 28 of January 21, 2018 will come into effect, establishing a special leave WITH PAY for those employees who suffer a serious illness of a catastrophic nature. This special leave grants up to a maximum leave of six (6) working days per year, in addition to the sick leave days to which the employee is entitled by law.

The illnesses covered by the new Law are those listed in the Special Coverage of the Health Insurance Administration of Puerto Rico (ASES by its Spanish acronym), as amended from time to time. These are: 1) Acquired Immune Deficiency Syndrome (AIDS); 2) Tuberculosis; 3) Leprosy; 4) Lupus; 5) Cystic Fibrosis; 6) Cancer; 7) Hemophilia; 8) Aplastic Anemia; 9) Rheumatoid Arthritis; 10) Autism; 11) Post Organ Transplant; 12) Scleroderma; 13) Multiple Sclerosis; 14) Amyotrophic Lateral Sclerosis (ALS); and 15) Chronic Kidney Disease in levels 3, 4 and 5.

The use and enjoyment of this special leave is subject to the following:

a) The employee must have worked for twelve (12) months with the employer in which the individual worked one hundred thirty (130) hours per month.

b) The employee must have exhausted the sick leave in order to use this special leave. An employer may not require an employee to use the special leave without first having exhausted his/her regular sick leave.

c) The six (6) annual days will NOT be cumulative or transferable to the following calendar year.

d) In case the employee resigns or is separated from employment, this leave will NOT be subject to a monetary liquidation in favor of the employee.

e) The employer, at the request of the employee, will be allowed to use of the six (6) annual days established in the Law through split, flexible or intermittent schedules.

f) The use of this leave will be considered time worked for purposes of accruing all benefits as an employee.

g) An employer may not consider the days used out of this special leave to adversely evaluate the employee or as a basis to take action against the person.

The Law provides that the employer may require the employee to produce a medical certificate certifying that he/she is diagnosed with any of the listed catastrophic illnesses and continues to receive medical treatment for the illness. This requirement must comply with the right to privacy and confidentiality protections established in the HIPAA law. If an employee complies with all the requirements to use this special leave as of March 2, 2018, like for example, the requirement to have worked for twelve (12) months with the employer and one hundred thirty (130) hours per month, the employee can use this special leave.

The Secretary of Labor and Human Resources of Puerto Rico shall have the power to investigate, file complaints, and impose penalties if an employer fails or deprives an eligible employee from benefitting from this special leave. The penalty is a fine of two thousand dollars ($2,000.00).

The content of this communication is a summary of Law 28 and does not constitute a legal consultation. There are specific circumstances in the application of the Law that require particular consideration which are not contemplated in this communication. In case of doubt, feel free to contact us.