Hurricane closures in Puerto Rico: do you get paid?

Let us start by clearing up the misunderstanding

Every hurricane season the same idea circulates: that Puerto Rico law gives you five days of paid emergency leave when the Governor declares a state of emergency and your workplace closes. That leave **exists** (it is in Article 4(p) of Act 180 of 1998) but it **does not say that**.

What it says, word for word, is that during states of emergency declared by the Governor or by the Secretary of Health, **an employee who suffers, or is suspected of suffering, the illness or epidemic that caused the state of emergency**, once sick leave is exhausted, may use all accrued leave they are entitled to. And if they remain ill, they shall be granted paid emergency leave of **up to five working days**.

Read it again slowly. The benefit is triggered by **being sick** with the illness or epidemic that caused the emergency, not by the business closing. It is a provision designed for epidemics, not hurricanes. If your employer closes for three days because of a storm and you are perfectly healthy at home, Article 4(p) does not apply to you.

We say this plainly because publishing the opposite would cost someone a lost claim. And because we ourselves had this topic noted backwards until we went and read the text.

What we looked for and did not find

To answer honestly we also have to say what is not there. We read in full the two statutes governing this in private employment: **Act 180 of 1998** (minimum wage, vacation and sick leave) and **Act 379 of 1948** (the workday statute).

**Neither mentions the word «hurricane»**, and neither contains a provision obligating the employer to pay you for days the business stays closed due to an emergency. If someone tells you the law requires paying those days, ask them for the article.

That does not mean you are owed nothing. It means what you are owed comes from elsewhere: your accrued leave, whatever your contract or collective bargaining agreement says, your employer's written policy, and (if the closure drags on or turns into a layoff) unemployment insurance.

The federal layer flips the answer if you are an exempt salaried employee

Puerto Rico's statutes do not carry the answer, but federal law does carry one, and **it is not the same for everyone**. The **Fair Labor Standards Act** starts from a division that decides everything here: whether you are **non-exempt** (typically, paid hourly and earning time and a half over 40 hours) or **exempt** under Section 13(a)(1) (the executive, administrative, professional, computer and outside sales exemptions).

**If you are non-exempt, the answer is no.** **Fact Sheet #72** from the U.S. Department of Labor's Wage and Hour Division says it directly: the FLSA **«generally applies to hours actually worked»** and **«does not require employers who are unable to provide work to employees due to a natural disaster to pay non-exempt employees for hours the employees would have otherwise worked»**. That confirms from the federal side the same thing that comes out of reading Puerto Rico's statutes.

**If you are exempt and salaried, the answer changes.** **Fact Sheet #17G**, on the Part 541 salary basis requirement, says two things that must be read together: that an exempt employee **«must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours worked»**, and that **«if the employee is ready, willing and able to work, deductions may not be made for time when work is not available»**.

Put into the real situation: if the business closed Tuesday for the emergency but you worked Monday, that week **you are owed the full salary**. The same fact sheet clarifies the other side: **exempt employees do not need to be paid for any workweek in which they perform no work at all**.

And there is a sentence in Fact Sheet #72 worth keeping handy when someone says «in an emergency the rules are suspended»: the FLSA's minimum wage and overtime requirements **«are not subject to waiver during natural disasters and recovery efforts»**.

**Update on the threshold.** In a later batch we did verify the figure on the Department of Labor's official salary levels page: for **Puerto Rico** the special salary level is **$455 per week**, not the $684 standard level of the states. We explain it in full, with the four requirements of each category, in our exempt employee guide. Even so, what decides this section is the salary basis rule, not the number. Second: **whether you are exempt under Puerto Rico law** is a separate question, depending on the regulation defining «executive», «administrative» and «professional» for purposes of Act 379, and **we have not been able to verify that regulation**. Do not assume your classification from your job title: neither federal nor local law determines it by the name of the position.

If you are sent to help with the recovery

After a large event this happens a lot in Puerto Rico: the employer is asked to contribute people for recovery work, or you are invited to «help as a volunteer». Fact Sheet #72 carries three rules worth knowing before saying yes.

The third is the one fewest people know and the one that changes the paycheck most: if an employer is requested to furnish its services, **including its employees**, for disaster relief under federal, state or local general police powers, **those employees are considered employees of the government while rendering those services**, and **none of those hours count as hours worked for the employer** under the FLSA. It is not a technicality: it decides where your pay for those hours comes from.

• **Volunteering for a public agency** in an emergency relief capacity: not considered compensable employment under the FLSA if you perform the service for civic, charitable or humanitarian reasons **without promise, expectation or receipt of compensation** (though you may receive expenses, reasonable benefits or a nominal fee); if you offer your services **freely and without coercion**, direct or implied; and if you are **not otherwise employed by that same public agency to perform that same work**.
• **Volunteering for a private not-for-profit organization** with religious or humanitarian objectives, without contemplation or receipt of compensation: also not considered compensable employment. **But** employees of such organizations **may not volunteer to their own employer** to perform without pay the same services they are employed to perform.
• **Employees furnished for disaster relief under police powers**: they are considered government employees for the duration of that service, and those hours **do not count as hours worked for your employer**.

If they make you work during the closure

Here there are hard rules in your favor, and they are in Article 4 of Act 379, which defines what counts as overtime. Two of its five situations apply directly to an emergency:

• **Hours you work on days or at times when the establishment must remain closed to the public by law** are overtime. If there is a closure order and they put you to work inside, that time is paid at time and a half. The statute writes one exception: Sundays on which the law requires closing do not become overtime for that reason alone.
• **Hours you work on your weekly day of rest** are also overtime. In emergencies shifts get reshuffled and the day off gets lost track of; that day still counts.
• And the two normal yardsticks keep running: more than **8 hours in a day** or more than **40 in a week** is overtime, and in Puerto Rico the two run separately.

«You will make up the hours next week»

It is the sentence you hear most after a closure, and it is worth knowing where it comes from and how far it reaches. Article 6(e) of Act 379 allows making up hours, but look at how it is written: the employer **may grant an employee's request** to make up hours not worked in the week **for the employee's personal reasons**.

Two things jump out of the text. First, making up hours arises from **your request**, not the employer's instruction. Second, it is for hours you did not work **for your own personal reasons**, and a closure decided by the employer or by an emergency order is not a personal reason of yours.

When making up hours does apply, those hours do not count as overtime only if worked **in the same week as the absence**, not exceeding **twelve hours in a day** nor **forty in the week**. Outside any of those three limits, they are overtime at time and a half again.

If you are asked to make up hours from a closure, the reasonable (and polite) question is on what basis, and what happens to hours beyond those limits.

Your accrued leave: the real cushion

In practice, what carries most people through a closure is the leave they have already accrued. Under Act 180, if you work at least 130 hours a month you accrue vacation and sick leave every month, at rates depending on whether you were hired before or after the 2017 Labor Reform.

There is an asymmetry worth understanding before the storm arrives: **vacation is scheduled by the employer in shifts** and you cannot take it whenever you please, while sick leave is used when you are sick. A hurricane closure is neither, which is why the conversation usually ends in «we will charge it to vacation», which can be reasonable but is an agreement, not an automatic legal obligation.

And if the state of emergency is indeed due to an **illness or epidemic** and you contract it or are suspected of having it, that is where Article 4(p) comes in, in the order the statute commands: first you exhaust sick leave, then you may use all accrued leave you are entitled to, and if you remain ill, the up-to-five working days of paid emergency leave.

The protection that is automatic

Article 4(q) of Act 180 is short and worth a lot. No employer, supervisor or representative may use **justified sick absences** as an efficiency criterion in your evaluation when it is considered for **raises or promotions**.

And the same subsection adds the part that matters most after an emergency: nor may it consider those absences **or the special emergency leave** in that article, correctly charged to sick leave, paid or unpaid, **to justify disciplinary actions such as suspensions or dismissals**.

That is: if you properly used emergency leave during a declared epidemic, that absence cannot later be held against you in an evaluation or a disciplinary file. If it is, there is a specific article to cite.

If the closure drags on or you do not return

When a closure stops being days and becomes weeks, the question changes from «will they pay me for these days?» to «what do I do meanwhile?». Two different things come in there.

The first is **unemployment insurance**, which exists precisely for the involuntary interruption of income. You do not have to wait to be formally dismissed to find out whether your situation qualifies.

The second is **dismissal**. If the employer does not reopen and ends your employment, Act 80 applies: severance computed on the highest salary of the last three years, and one year to claim from the effective date of dismissal. And if what they do is push you to resign through more onerous conditions, Article 5 of Act 80 calls that forced resignation and treats it as a dismissal.

Document from day one: the employer's communications about the closure, the dates, and what they told you about pay and returning. In a labor claim, those messages are the evidence.

What to have settled before the season

Almost everything that decides how a closure goes for you is not in the statute: it is in documents you can request today, when there is no pressure and nobody is rushing.

• **Your employer's written policy on emergency closures.** Many companies have one, and many pay by policy even though the law does not require it. If it exists, request it in writing.
• **Your schedule as notified in writing.** Act 379 requires the employer to notify you in writing of daily hours, start and end of work and of the meal period, and that schedule is prima facie evidence. It is what you use to reconcile hours after an emergency.
• **When your workweek starts.** It is 168 consecutive hours beginning on the day and hour the employer notifies; absent notice, at 12:01 a.m. Monday. Where that cut falls decides whether you cross 40 in one week or across two.
• **Your vacation and sick leave balance.** Knowing how many days you have accrued before the event lets you negotiate instead of improvise.
• **Your collective bargaining agreement, if you are unionized.** It can give you more than the statute, and on the workday, the agreement's daily maximum governs over the general rule.