By Conn Maciel Carey’s COVID-19 Task Force

On May 1, 2020, Governor Wanda Vázquez Garced of Puerto Rico issued a COVID-related Executive Order (“EO 2020-038”), which imposes a number of requirements upon employers, included among them that every employer must develop a comprehensive, site-specific COVID-19 exposure control plan prior to reopening.  The Executive Order also makes clear that employers already open under prior exemptions to prior lockdown orders must also prepare a plan and must do so as soon as possible.

To implement the Executive Order, the Puerto Rico Secretary of Labor issued Circular Letter 2020-03 (“CL 2020-03”), setting forth the elements that must be covered in the plan, including the requirement that the plan be “exclusive to [your] particular workplace.”

There are 22 total elements that must be covered, including the requirements that the plan:

• Be a written document, specific to the workplace and contemplates the particular tasks, the physical structure and the number of employees.
• Include recommendations issued by local, national and international health agencies regarding controls to prevent the spread of COVID-19.
• Detail the monitoring and/or screening process of personnel prior to entering the workplace.
• Indicate the control measures that will be taken to achieve the physical distance between employees and clients/public.
• Indicate how adequate ventilation will be provided to ensure adequate air flows and, in locations with air conditioning systems, effective filtering.
• Include and detail the method that will be implemented for cleaning and disinfecting the establishment, and the frequency of cleaning and disinfection of the work areas.
• Describe necessary personal protective equipment (PPE) for employees, to be provided by the employer free of cost.

The Circular Letter makes it abundantly clear that the exposure control plans must be customized to your specific workplace.  Accordingly, employers are advised against relying on a “one-size-fits-all” approach.  As we anticipate that other jurisdictions—states, territories, counties and cities—are likely to follow Puerto Rico in this regard, our OSHA · Workplace Safety Practice Group is working with clients in various industries across the country to develop workplace-specific plans that take into account the unique aspects of their workplaces.

Even if you are not under a mandate to develop an Infection Control Plan, as Puerto Rico has just established, having a customized exposure control plan for your workplace can be an essential tool to help make the case to your employees about why it is safe to come to work, and to prevent and/or defend against worker whistleblower complaints, OSHA enforcement actions, or tort suits related to COVID-19 issues in the workplace.  That is critical now, given that OSHA has received some 1,063 virus-related worker whistleblower complaints, and that the media is paying close attention to those numbers, employees are, now more than ever, being made aware of their ability to file complaints under Section 11(c) of the Occupational Safety and Health Act (“the OSH Act”).

If you would like help developing such a plan, please contact one of the Conn Maciel Carey attorneys with whom you have worked.  Our COVID-19 Task Force has developed a template plan, and with some coordination, we can help tailor the plan to your workplace and work operations.

For additional resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 FAQ Page for an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory related developments and guidance. Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about the Labor and Employment Law or OSHA implications of COVID-19 in the workplace.  Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.