Legal Update February Vol. 2018

Publications Admin

PR ACT 28-2018 GRANTS SPECIAL PAID LEAVE FOR EMPLOYEES SUFFERING FROM SEVERE ILLNESS OF CATASTROPHIC NATURE

PR Act 28, known as “Ley de Licencia Especial para Empleados con Enfermedades Graves de Carácter Catastrófico”, was recently signed into Law in Puerto Rico.

The purpose of this law is to provide employees who suffer severe illness of catastrophic nature, as defined by the law, additional paid leave to tend to their treatment and medical appointment and to minimize the employees’ concerns that their employment might be affected when they take time to attend these treatments and appointments.

Act 28 provides a special paid leave of six (6) days per year for employees who qualify and who suffer from a catastrophic illness as defined by the Law. To qualify for this special leave, the employee must have worked for the company for at least twelve (12) months, must have worked a minimum of at least one hundred and thirty (130) hours monthly, and must have used up all their sick leave. The employer cannot require the employee to use this special leave until they have used all their sick leave.

The six (6) days per year special leave can be used annually and it cannot be accumulated nor transferred to the following year. Upon the employee’s employment termination, voluntary or involuntary, the leave or any remaining portion of it, will not be paid out to the employee. The special leave can be used through divided, flexible or intermittent schedules. The use of this special leave will be considered as time worked for accrual purposes of other employee benefits.

The Act defines “catastrophic illness” to include 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 levels 3-5.

The employer cannot take into consideration the employees’ use of this special leave for purposes of disciplinary actions, evaluations and other employment related decisions.

The employer can require a medical certificate certifying that the employee suffers from a catastrophic illness covered by the Law and that he/she continues to receive medical treatment for said illness. Any request for medical information under Act 28 must comply with HIPAA.

Employees who comply with the requirements of Act 28 can use the special leave granted immediately once the Law becomes effective.

Act 28 applies to governmental employees and to private employers as defined by PR Law 4-2017. The Act becomes effective on February 20, 2018.

Act 28 grants authority to the Secretary of Labor and Human Resources to investigate, receive and file claims and impose penalties for failure to comply with the Law.

For additional information and/or assistance in complying with Act 28, please contact attorney Carmen Lucía Rodríguez Vélez (clrodriguez@nrhlawpr .com) and/or Gerardo Hernández (ghernandez@nrhlawpr.com).

PUERTO RICO SUPREME COURT DETERMINES THAT STRICT PRODUCT LIABILITY DID NOT APPLY BECAUSE A SHRIMP CONTAMINATED WITH SAXITOXIN WAS NOT “MANUFACTURED” AS IT BECAME CONTAMINATED WITHOUT HUMAN INTERVENTION

In the case of Gonzalez Caban v. JR Seafood, Civil Case No. 14-1507 (GAG), the United States District Court for the District of Puerto Rico certified the following question upon the Puerto Rico Supreme Court:

“Under the principles of product liability, is a supplier/seller strictly liable for the damages caused by human consumption of an extremely poisonous natural toxin found in a shrimp, even if said food product (and its “defect”) are not a result of manufacturing or fabrication process? If the previous question is answered in the affirmative, would it make a difference if the “defect” of the food product is readily discoverable scientifically or otherwise?”

This question was presented to resolve the complaint filed under diversity jurisdiction by Plaintiff against JR Seafood Inc., Integrand Insurance Company, Packers Provisions of Puerto Rico Inc., Ramón Gutiérrez, Evaristo Rivera Berrios d/b/a Restaurante El Nuevo Amanecer, and Cooperativa de Seguros Múltiples.

In the complaint, Plaintiff alleged that on February 19, 2004, he got intoxicated after consuming a toxic shrimp at Restaurante El Nuevo Amanecer, in Coamo, Puerto Rico and that he is entitled to compensation in damages. Plaintiff claimed that the consumption of the shrimp made him suffer paralytic shellfish poisoning that permanently deteriorated his health to the point of incomplete quadriplegia, which bound him to a wheelchair.

The sellers and supplier of the shrimp filed a Motion to Dismiss Plaintiffs’ complaint under Rule 12 (b)(6) where they argued that they could not be held strictly liable to a restaurant diner who allegedly had sustained permanent injury from eating shrimp contaminated with a natural toxin because the shrimp was not a “manufactured product”. Because there was no precedent, the US District Court concluded that said matter constituted an unsettled issue of Puerto Rico law which should be resolved by the Puerto Rico Supreme Court.

The Puerto Rico Supreme Court answered the question by ruling that strict liability did not apply because a shrimp contaminated with saxitoxin was not “manufactured” because it became contaminated without human intervention. Using this principle in the present case, the district court concluded that the diner’s strict liability claims could not proceed.

For additional information please contact attorney Nestor J. Navas (nnavas@nrhlawpr.com) and/or Fred Gautier Lugo fgautier@nrhlawpr.com).

ARE YOU TAKING ADVANTAGE OF ALL TOOLS AVAILABLE TO MAXIMIZE YOUR EARNINGS?

Hurricane Maria changed Puerto Rico and created a new reality for those doing business within the Island’s jurisdiction. The challenges encountered in today’s commercial landscape have required that many businesses and corporate entities doing business in Puerto Rico, reevaluate their structure, corporate configuration and personnel operations.

Understanding a company’s operational needs is essential to develop a corporate structure that can maximize earnings by taking advantage of Puerto Rico’s current laws and situation.

At NRH we are prepared to assist you in evaluating your corporate structure to provide those recommendations that will lead to maximization of earnings, while complying with Puerto Rico’s current legal landscape.

Do not hesitate to contact us to set up a meeting and discuss how to improve your business.

For additional information please contact attorney Nestor J. Navas (nnavas@nrhlawpr.com) and/or Fred Gautier Lugo fgautier@nrhlawpr.com).

NRH HUMAN RESOURCES CONSULTING SERVICES

The challenges encountered in today’s commercial landscape require that all entities doing business in Puerto Rico reevaluate their corporate structure and personnel needs to maximize earnings. In doing so, the figure of the Human Resources Manager becomes of instrumental value to a company.

At NRH we recognize that not all small businesses can afford to have a human resource manager or department. Considering the aforementioned, we offer our clients the advantage of outsourcing the work performed by a company’s human resources department in a cost-effective way.

At NHR we have experienced human resources specialists, who as attorneys, have both the experience and expertise for effectively managing your employment matters offsite, at a reduced rate.

If you wish to inquire into the possibility of outsourcing your HR needs, please do not hesitate to contact us to set up a meeting to discuss how we can assist you in reducing your operational costs while assisting you on these matters.

For additional information please contact attorney Carmen Lucía Rodríguez Vélez (clrodriguez@nrhlawpr.com) and/or Fred Gautier Lugo (fgautier@nrhlawpr.com)

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