California Provides Supplemental Paid Sick Leave For Food Sector Workers

Written by Jeremy Mittman and Stephen Franz

On April 16, 2020, Governor Gavin Newsom issued Executive Order N-51-20 (the ”Order”), which requires “hiring entities” with at least 500 employees in the United States to provide “food sector workers” with up to 80 hours of supplemental paid sick leave related to COVID-19.  The Order, effective April 16, 2020, is the second recent law in California providing paid sick leave to workers not covered by the federal Families First Coronavirus Response Act (“FFCRA”)(which requires employers with  fewer than  500 employees provide paid sick leave).  We previously reported on the Los Angeles emergency ordinance providing similar paid sick leave provisions for employees of larger employers not covered by the FFCRA.

Although the Order explicitly addresses “food sector workers”,  it is not necessarily limited to workers in the food industry.  The Order may apply to employers across all industries, if those employers have workers engaged in food services.  Consequently, all employers should carefully scrutinize the provisions of the Order to determine if they apply.  Here is what employers need to know about the Order:

Who is a Covered “Food Sector Worker”: A person is a food sector worker and entitled to supplemental paid sick leave under the Order if he/she is an “essential worker” exempt from a statewide stay-at-home order who either:

1. Works in the Canning, Freezing, and Preserving Industry (Wage Order 3);
2. Works in Industries Handling Products After Harvest (Wage Order 8);
3. Works in Industries Preparing Agricultural Products for Market or on the Farm (Wage Order 13);
4. Works in an Agricultural Occupation (Wage Order 14);
5. Works for a hiring entity that operates a “food facility”; or
6. Delivers food from a “food facility”, for or through a hiring entity.

A “food facility” is broadly defined as an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, including an operation where food is consumed on or off the premises, regardless of whether there is a charge for the food.  A hiring entity does not need to be in the food sector to operate a food facility.  Food facilities include temporary/mobile food facilities, vending machines, commissaries, catering operations, and host facilities.

Who is a Covered “Hiring Entity”: A hiring entity covered by the Order is “any kind” of private entity with 500 or more employees in the United States.  Hiring entities include corporations, partnerships, LLCs, LLPs, delivery network companies (businesses maintaining an internet website or mobile application used to facilitate delivery services for the products within 75 miles); or transportation network companies (entities operating in California that provide prearranged transportation services for compensation using an online-enabled application or platform to connect passengers with drivers using a personal vehicle)

How Much Supplemental Paid Sick Leave is a Worker Entitled to: Under the Order, hiring entities must provide a food sector worker with 80 hours of supplemental paid sick leave if the worker is either (a) full-time; or (b) was scheduled to work at least 40 hours per week in the two weeks preceding the leave date.  Part-time workers are entitled to paid sick leave equal to either (a) their hours worked over a normal two-week schedule; or (b) if the worker had a variable schedule, fourteen times the average number of hours worked each day for six months prior.  Workers have discretion how many hours of supplemental paid sick leave they may use, up to their maximum entitlement under the Order

A worker’s sick pay shall be paid at a rate equal to the highest of either (a) the worker’s regular rate of pay over the last pay period; (b) the state minimum wage; or (c) the local minimum wage.  Sick pay shall not exceed $511 per day ($5,110 in the aggregate).

Why Workers May Take Supplemental Paid Sick Leave: Under the Order, a food sector worker may take paid sick leave if he/she is unable to work for any of the following reasons:

1. The worker is subject to a Federal, State, or local quarantine/isolation order related to COVID-19;
2. The worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
3. The worker is prohibited from working by the hiring entity due to health concerns related to the potential transmission of COVID-19.

Food sector workers may submit written or oral requests to hiring entities for leave, effective immediately.  The Order does not specify what, if any, documentation a hiring entity may request from a worker before providing leave.

Supplemental Paid Sick Leave in Addition to Other Paid Leave: A hiring entity cannot require a food service worker to use any other paid or unpaid leave, paid time-off, or vacation time provided by the hiring the entity before the worker uses supplemental paid sick leave under the Order.

Exemption from Supplemental Paid Sick Leave: Under the Order, a hiring entity need not provide a food sector worker with paid sick leave if the entity already (as of April 16, 2020) provides the worker with a supplemental benefit (e.g. paid leave) that (a) permits workers to take paid sick leave for the same reasons as the Order; and (b) compensates the worker at least the amount he/she would be compensated through taking supplemental paid sick under the Order.

The Order Has No Definite Expiration Date: The Order is effective immediately, and shall remain in place during the pendency of any statewide stay-at-home orders.  However, if a worker takes supplemental paid sick leave when the stay-at-home orders expire, he/she is entitled to complete the full amount of leave he/she otherwise would have been entitled to under the Order.

Hiring Entities Should Provide Notice of Supplemental Paid Sick Leave: The Order suggests covered hiring entities must provide notice of the paid sick leave—the Labor Commissioner will issue model notice by April 23, 2020.  If a hiring entity’s workers do not frequent a workplace, the entity may provide notice through electronic means (e.g. email).

Penalties for Noncompliance: The Labor Commissioner has the authority to enforce the Order.  A worker may file a complaint with the Labor Commissioner, who may seek remedies under California’s paid sick leave law and/or for unlawful business practices.

 

Employers should consult the Order, or their trusted employment counsel, for further guidance.