Special leave: 15 days to handle a violence situation

It is a separate leave, added to the ones you already have. It does not replace your vacation or sick leave: the law expressly says it is fifteen days additional to those you are entitled to by law, and leaves it to your discretion to also request any other leave you could use for the same purposes, paid or unpaid. The most important and least known part is that the leave also covers a family member’s situation. The law defines family member as sons or daughters, spouse or partner joined by an affective relationship, the employee’s mother or father, and minors, elderly persons or persons with disabilities over whom you have custody or legal guardianship.

The law sets three requirements and all three must be met: that you have suffered, or have a family member who has suffered, one of the covered situations; that you use the leave to handle that situation; and that you are not the cause of the situation. Employee is every person earning economic remuneration under a regular or temporary employment contract, or any public sector appointment. Employer is the Government of Puerto Rico including its three branches, public corporations, municipalities, and every private employer in Puerto Rico as defined by Act 4-2017. And one thing worth underlining: the leave applies whether or not a police complaint exists.

• Having suffered, or having a family member who suffered, domestic or gender violence, child abuse, sexual harassment at work, sexual assault, lewd acts or aggravated stalking.Verified against the official source
• Using the leave to handle that situation.Verified against the official source
• Not being the cause of the situation.Verified against the official source
• Notifying the employer at least two (2) working days in advance, unless prevented by something outside your control or by imminent danger.Verified against the official source

• Any of these eight serves as evidence if the employer requests it: a protection order or other documentation from a Government instrumentality or a court; a document on the letterhead of the court, agency or public or private service provider that assisted you; a police complaint or report; documentation of an admission or confession by the author of the conduct, or proving their acts; documentation of medical treatment received by you or your family member; a certification from a certified counselor, social worker, health professional, religious leader, shelter director, legal advocate or legal representative who assisted you; a sworn statement from another employee who witnessed the situation; or any other document reliably showing you were carrying out such efforts.
• The certification must clearly state the time you had to devote to handling the situation, expressed in days and hours. In cases involving minors the minor’s name is not disclosed: only their initials.

1. 1

   Step 1: Know they are fifteen additional days

   Up to a maximum of fifteen (15) working days a year, unpaid, additional to those you are already entitled to by law. They are used within each calendar year and do not accumulate or carry over. At your request, the employer shall allow using them on a fractioned, flexible or intermittent schedule: they need not be fifteen consecutive days, and that flexibility is what makes the leave usable for court and medical appointments.

2. 2

   Step 2: Notify two working days in advance

   That is the general rule. If you are prevented from complying by something outside your control, notice may be given in a shorter time. And if you are in imminent danger to your health or safety, you notify within the two (2) working days following your first absence. Notice may go by phone, fax, in person, email, in writing or by any reliable means, and it need not necessarily come from the employee: it may be conveyed by a family member, a certified counselor, a social worker, a health professional, a religious leader, a shelter director, a legal advocate or a legal representative.

3. 3

   Step 3: Choose the evidence you already have

   The employer may request documentary evidence, and the law lists eight kinds that satisfy it, so you almost certainly have one. What the employer may not do is ask you for evidence of a person’s arrest or conviction to justify your absences: the law expressly forbids it. You have a reasonable term, not exceeding two (2) working days after the last absence, to provide what is requested.

4. 4

   Step 4: Demand the confidentiality the law orders

   Every employer must ensure the confidentiality and protection of every document provided or created in connection with your leave, and any document you submit must be filed in your personnel record in a sealed envelope. Disclosure is proper only if you request and consent in writing; if there is a judicial order; if federal or state law requires it; if a law enforcement or prosecutorial investigation requires it; if it is necessary to protect any employee or to seek a remedy before law enforcement agencies, Justice or the courts; or if it is necessary for the Department of the Family in an investigation involving minors.

5. 5

   Step 5: Your job is held

   Every employer must hold the job you perform at the time you take the leave and reinstate you once you have exhausted the days you were entitled to. An employer that fails to comply must pay you — or your beneficiaries — the wages you would have earned had you been reinstated, in addition to answering for all damages caused to you.

6. 6

   Step 6: Ask for a reasonable accommodation if you need one

   Beyond the leave, Article 13 allows requesting a reasonable accommodation or flexible working conditions to handle the situation: moving your physical workplace, modifying your tasks, changing your start, end, lunch or break times, or any other arrangement. The request must be made in writing, and may only be denied for lack of reasonableness of the requested accommodation, and not without first exploring every possible accommodation alternative.

7. 7

   Step 7: If they penalize you, claim

   The law expressly prohibits the employer from considering these days to issue unfavorable evaluations or to take harmful actions such as cutting hours, reclassifying positions or changing shifts; from using justified absences as an efficiency criterion in evaluations for raises or promotions; from using them to justify suspensions or dismissals; from discriminating or taking any adverse employment action against someone who took the leave; from unduly interfering with or obstructing the exercise of these rights; or from disclosing the information provided. The administrative fine runs from two hundred fifty dollars ($250) up to a maximum of five thousand dollars ($5,000).

The leave is requested from the employer; no agency grants it. To claim for non-compliance, private sector employees may file with the Department of Labor and Human Resources or with the Office of the Women’s Advocate: both have authority to investigate, receive and file complaints and impose the penalties. Employees of agencies, municipalities, instrumentalities and public corporations who disagree with the appointing authority’s determination may, at their discretion, file their claim with the Office of the Women’s Advocate or with the Public Service Appeals Commission or another competent administrative forum.

• Believing a police complaint is needed: the law expressly says the leave applies whether or not one exists.
• Thinking it only covers your own situation and not a family member’s.
• Spending your vacation first: these fifteen days are additional to those you already have by law.
• Handing over evidence of arrest or conviction because they asked: the law forbids requiring it of you.
• Asking for the fifteen days consecutively when you may use them on a fractioned, flexible or intermittent schedule.
• Not notifying within the two working days following the first absence when there was imminent danger.
• Letting the absences appear in your performance evaluation, which the law prohibits.
• Not requesting in writing the Article 13 reasonable accommodation, a protection separate from the leave.

These are the government pages this guide is based on.

• Departamento del Trabajo y Recursos Humanos (DTRH)

  Departamento del Trabajo

  bvirtualogp.pr.gov

• Department of Labor and Human Resources

  DTRH

  www.trabajo.pr.gov

• Office of the Women’s Advocate

  OPM

  www.mujer.pr.gov