The Solicitor of Labor and Human Resources Department of Puerto Rico (the "Solicitor") recently issued an Opinion to provide guidance regarding the accrual and payment of sick leave to non-exempt employees and outside salespersons. The Opinion addresses the maximum number of unused sick time that non-exempt employees can accrue in a calendar year.
Act No. 180 of 1998 provides that accumulated sick leave not used by the employee in the course of the current year will be accrued for subsequent years up to a maximum of fifteen (15) days. However, this Law is silent on whether the fifteen (15) days refers to the total amount of sick leave when unused days from previous years are added to those accrued in the current year. For example, a non-exempt employee has accumulated fifteen (15) days of sick leave from previous years, and in the current year has accumulated ten (10) days. Act No. 180 allows two possible interpretations: (i) that employee may use twenty-five (25) days of paid sick leave; or (ii) is entitled only to a sick leave of no more than fifteen (15) days, while the remaining ten days are forfeited. According to the Solicitor's Opinion, Act No. 180 mandates the first alternative, that is twenty-five (25) days.
The Opinion states that a non-exempt employee has a right to carry over up to fifteen (15) days of unused sick leave from previous years, in addition to the sick leave accrual of the current calendar year. Thus, a non-exempt employee works at least one hundred and fifteen (115) hours each month may accumulate up to twenty-seven (27) days of sick leave in a given calendar year.
Act No. 15 of April 14, 1931, as amended, empowers the Solicitor with the authority to issue legal opinions on the interpretation and implementation of local labor laws. Because of this, Courts in Puerto Rico, including the Supreme Court, give deference to the Solicitor's Opinions when deciding claims by employees.
The general practice followed by many employers is that any accrued annual leave in excess of a fifteen (15) ceiling is forfeited if not used by the end of the year.
Please be advised that the Solicitor's interpretation of the sick leave provisions of Act No. 180 constitutes the official position of the Puerto Rico Department of Labor and Human Resources. We encourage all employers to revise their sick leave accrual and usage policies and procedures.