On August 8, 2023, Puerto Rico's government enacted Act No. 88-2023, known as the "Puerto Rican Military Code of the 21st Century" ("Military Code"). This new law supersedes the previously enacted Military Code of Puerto Rico from 1969. Contrary to the previous code, the new Military Code specifically defines armed forces of Puerto Rico as including the PR National Guard and its Army and Airforce subdivisions, the Office of the Adjutant General of PR, the PR State Guard, and the Youth Programs of the PR National Guard. This new law addresses an armed forces member's entitlement to protected military leave and reinstatement rights.
Notably, public employees who are members of the armed forces who are asked to serve are now eligible for a paid leave of up to 45 days per year. If service exceeds the 45-day period, public employees can complete their service using accrued vacation leave or any additional unpaid leave available to them. Private employees who are members of the armed forces who are asked to serve are eligible for unpaid leave of up to 45 days. Both leaves become available in cases of military training, such as drills or battle assembly, as well as courses or seminars ordered as part of their military training, and are provided without any effect on the employee's seniority or efficiency rating.
Prior to the enactment of this new Military Code, employees had 40 days to request reemployment. Now, any member of the National Guard who is asked to serve and is eventually honorably discharged from their service, may request reemployment within the following guidelines:
- For military service lasting 30 days or less, the member must report to their workplace at the beginning of their work shift after 8 hours of rest.
- For military service lasting 31 to 180 days, the member must request reemployment no later than 14 days after completion of service.
- For military service lasting more than 181 days, the member must apply for reemployment no later than 90 days after completion of service.
In the case of private employers, employees must be reemployed to a position similar in ranking, status and pay unless the employer's business situation has changed to a degree where doing so would be impossible or unreasonable. In such cases, the employer bears the burden of proof. Private employers should also be aware that Act No. 203-2007, known as the Bill of Rights of the Puerto Rican Veteran of the 21st Century, also provides and specifically recognizes the right to reemployment for members of the armed forces working for private employers. Act No. 203-2007 also specifies that members of the armed forces who are asked to serve retain all employment rights and privileges, including seniority and additional rights or benefits they may have acquired if they had continued their employment without any interruption. The Act similarly provides for reemployment rights following the veteran's return from active duty in the armed forces.
Noncompliance with the new Military Code dispositions may result in $5,000 fines per infraction, imprisonment for up to three years, or both penalties at the discretion of the court. The statute of limitations for claims regarding infractions of this Military Code was increased from six months to one year from the termination or discriminatory act.
Employers are encouraged to revise their policies and manuals to ensure compliance with the above.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.