On April 16, 2020, California Governor Newsome signed Executive Order N-51-20, which provides supplemental paid sick leave (“COVID-19 Supplemental Paid Sick Leave”) for food sector workers who work for a hiring entity that has 500 or more employees nationwide for certain circumstances related to COVID-19. The type of food sector workers the Executive Order covers ranges from farmworkers to those workers who work in the retail food supply chain, including pick-up, delivery, supply, packaging, retail, or preparation. Eligible workers thus include grocery, restaurant or fast food workers.
The California Labor Commissioner also released FAQs on Executive Order Concerning Supplemental Paid Sick Leave for Food Sector Workers at Companies with 500 or More Employees. The California Labor Commissioner will enforce the provisions of the COVID-19 Supplemental Paid Sick Leave in the same manner it enforces the paid sick leave provisions under the Healthy Workplaces, Healthy Families Act of 2014.
While California employers should confirm with qualified legal counsel whether the COVID-19 Supplemental Paid Sick Leave applies to their specific business, the following is a summary of the new requirements.
Applies to Employers with 500 or more employees
The intent of the Executive Order is to help fill the gap of paid leave for essential food sector workers of large employers. Like the Families First Coronavirus Response Act (FFCRA), employers must count all workers employed nationwide, not just those working in California. However, the COVID-19 Supplemental Paid Sick Leave does not apply to public employers, only to private entities.
Specific Food Sector Workers
To qualify for COVID-19 Supplemental Paid Sick Leave, the food sector worker must perform work for or through a hiring entity with more than 500 employees nationwide and:
- Be exempt from the current Stay-at-Home Order (EO N-33-20);
- Perform work for the business outside the home; and
- Satisfy one of the following:
- Work in one of the industries or occupations defined in Industrial Welfare Commission (“IWC”) Wage Order 3-2001 § 2(B) (the canning, freezing, and preserving industry); IWC Wage Order 8-2001 § 2(H) (industries processing agricultural products after harvest); IWC Wage Order 13-2001 § 2(H) (facilities on a farm that prepare products for market); or IWC Wage Order 14-2001 § 2(D) (general agricultural occupations);
- Work for a business that runs a food facility (as defined in Health and Safety Code section 113789(a)-(b)), which includes grocery stores, fast-food restaurants, and distribution centers; or
- Deliver food from a food facility (as defined in Health and Safety Code section 113789(a)-(b)) for or through a hiring entity.
Three Reasons for Leave
The reasons under which an employee may use COVID-19 Supplemental Paid Sick Leave is not as expansive as the FFCRA. The food sector worker must be unable to work due to one of the following reasons:
- The worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- The worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
- The worker is prohibited from working by the worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.
Additional Hours of Paid Sick Leave
The COVID-19 Supplemental Paid Sick Leave requires employers to provide paid leave in addition to those paid hours already required by the Healthy Workplaces, Healthy Families Act of 2014, which is the greater of 24 hours or three days of paid sick leave.
Any food sector worker the employer defines as full-time or who worked or was scheduled to work an average of at least 40 hours per week in the two weeks before the leave is taken is entitled to 80 hours of COVID-19 Supplemental Paid Sick Leave. An employee who has yet to use any of the 24 hours or three days of paid sick leave has a total of 104 hours (or 80 plus three days) of paid sick leave available.
The COVID-19 Supplemental Paid Sick Leave provides part-time employees with paid sick leave hours based on their normal weekly schedule for a two-week period. For employees with variable schedules, the employer must determine if the employee has worked more or less than six months. For employees working more than six months, the employer must take the average number of hours the employee worked each day in the six-month period before taking COVID-19 Supplemental Paid Sick Leave and multiply that number by14. If the employee has worked less than six months, the employer must consider the hours worked during the entire period of employment and take the average number of hours worked and multiply that number by 14.
Employers covered by the COVID-19 Supplemental Paid Sick Leave who also operate in the City of Los Angeles may need to provide a full-time employee with up to 184 hours of paid sick leave. See the blog on the Los Angeles leave entitlement.
Like the FFCRA, the California executive order sets daily and aggregate caps. A hiring entity is not required to pay more than $511 per day and $5,110 in the aggregate to a food sector worker. The food sector worker is entitled to the highest of the following hourly rates:
- The worker’s regular rate of pay for the last pay period;
- The State minimum wage ($13.00 per hour for employers with 26 or more employees); or
- The local minimum wage.
Several cities and counties in California have adopted a local minimum wage requirement that is higher than the state minimum wage. For example, the San Francisco minimum wage is $15.59 per hour. Therefore, employers should review whether the employee is subject to any local minimum wage ordinance.
The Executive Order requires employers to permit their workers to wash hands every 30 minutes and additionally as needed. Public health agencies will enforce part of this order.
The Executive Order goes into effect immediately and remains in effect for the duration of any statewide stay-at-home order. A food sector worker taking COVID-19 Supplemental Paid Sick Leave when any such order expires can take the full amount of leave to which the worker is entitled under the Executive Order.
SHLC attorneys are available to be retained for private consultation and advice. You can also find information on other COVID-19 employment issues at the SHLC Coronavirus Pandemic Employer Resources page, at https://suttonhague.com/coronavirus/. For a schedule of our upcoming webinars, visit https://suttonhague.com/events-2/. We also have downloadable webinars on this and related topics at our Calnevalaw.com website. Regarding any tax issues, including payroll taxes, employers are strongly advised to consult with a qualified tax CPA.