On August 21, 2020, the Puerto Rico Department of Health approved additional regulations to manage the COVID-19 pandemic.  The “Regulation for the Establishment of Preventive Measures for the Management of the COVID-19 Pandemic and Administrative Penalties for Noncompliance” imposes stricter hygiene requirements on all businesses that have been authorized to operate during the pandemic .

A brief overview of the new Department of Health Regulation No. 9210 (the “Regulation”) follows.

Obligations for all Businesses Authorized to Operate

Generally, the Regulation makes it compulsory for all business authorized to operate under the Executive Orders, to require all persons entering and remaining in its premises to: (1) wear a mask that covers their nose and mouth; (2) disinfect their hands; (3) have their temperature taken, and (4) comply with the social distancing guidelines which require that all individuals stay at least 6 feet apart from each other.  Although not specifically stated, because these requirements apply to all individuals entering or remaining inside the establishment, the requirements seem to also apply to the business’s employees.  Further, the Regulation requires compliance from all businesses regardless of whether their establishment is an open or closed format.

The Regulation does not provide many details as to what each of these requirements entails and what is the businesses obligation. It simply lists them.  For instance, the Regulation  does not specify which is the highest allowable temperature an individual may exhibit in order to be allowed entry to the establishment, if the business is required to deny entry to individuals with a fever or if the business has any reporting obligation regarding any individuals with a fever. We recommend applying the CDC COVID-19 guidelines and recommendations to fill any gaps in the Regulation.

Further, the Regulation defines a “mask” as a piece of cloth or any other material that covers the mouth and the nose and that complies with the regulations and recommendations of the Puerto Rico Department of Health and the CDC. Based on that description, individuals using face shields will not be in compliance with the Regulation because face shields do not cover the nose and mouth and the CDC has expressly stated that face shields should not be used as a substitute for face masks. Thus, neither employees or visitors should be allowed to enter and remain in the establishment wearing only a face shield. 

Obligations for Individuals

Also, the Regulation imposes safety and hygiene obligations on individuals such as wearing a mask whenever they are outside of their homes or cars, complying with social distancing guidelines, avoiding participation in events and activities where there is a gathering of people, and isolating when they have been in close contact with an individual that has tested positive to COVID-19.  As to the quarantine requirement, the Regulation provides that the Department of Health will be implementing its  Isolation and Quarantine Regulation (Regulation No. 7380) enacted in 2007.

Penalties

Individuals who do not comply with the requirements provided in the Regulation will receive a $100 fine.  Businesses will receive a $500 fine.  However, businesses should keep in mind that the Governor’s Executive Orders related to COVID-19 have consistently provided that violation of its provisions or any Department of Health regulation may subject the offender to a fine of up to $5,000, imprisonment for up to six (6) months or both penalties at the discretion of the courts. Further, the Governor warned in last week’s conference related to Executive Order 2020-62, which is currently in place, that businesses that fail to comply with any of the requirements the Government is implementing to keep the economy open may be ordered to close for up to thirty (30) days.

Finally, the Regulation is effective immediately.