Paid Sick Leave for California Food Sector Workers Impacted by COVID-19

On April 16, 2020, Governor Newsom issued Executive Order N-51-20 (the “Order”) requiring companies that have 500 or more employees in the United States to provide supplemental paid sick leave to California workers in the food supply sector who are absent for certain COVID-19-related reasons.  The intent of the Order was to “fill the gap” in paid sick leave benefits provided.

Effective immediately, the Order requires “hiring entities,” as defined in the Order, to provide COVID-19 Supplemental Paid Sick Leave to each food sector worker performing work for or through the hiring entity if the individual is unable to work because they are (1) subject to a federal, state or local COVID-19 related quarantine order; (2) advised by a health care provider to self-quarantine due to COVID-19 concerns; or (3) prohibited from working by the hiring entity due to health concerns related to COVID-19.

Who Is a Food Sector Worker?

The Order defines a food sector worker as an “essential critical infrastructure worker” who is exempt from the Governor’s March 19, 2020, Stay at Home Order[1] (or any other statewide stay at home order), who leaves their home or place of residence to perform work for the hiring entity that falls into any one of the three following categories:

• work in one of the industries or occupations covered by Industrial Welfare Commission Wage Order 3 (canning, freezing, and preserving industry), Wage Order 8 (industries handling products after harvest), Wage Order 13 (industries preparing agricultural products for the market, on the farm) or Wage Order 14 (agriculture occupations); or
• work for a hiring entity that operates a food facility (such as restaurants and grocery stores); or
• who delivers food from a food facility for or through a hiring entity.

Notably, the Order covers all workers in California who work for a “hiring entity” (defined below) regardless of whether they are deemed employees of the hiring entity.

What is a Hiring Entity?

The Order defines a hiring entity as a private, sole proprietorship, or any other kind of private entity, including delivery network companies and transportation network companies, that have 500 or more employees in the United States.

Calculating COVID-19 Supplemental Paid Sick Leave

Food sector workers who are considered “full-time” by the hiring entity or who worked or were scheduled to work an average of 40 hours per week for the hiring entity in the two weeks preceding the requested leave are eligible for 80 hours of paid sick leave.  For those food sector workers to which these conditions do not apply, the amount of paid leave they are entitled to depends on the number of hours the individual has worked.  For food sector workers with normal weekly schedules, the worker is entitled to paid leave equal to the total number of hours the worker is scheduled to work over two weeks.  For food sector workers with variable hours, the worker is eligible for paid leave equal to 14 times the average number of hours the individual works each day in the six months preceding the leave date.  The calculation for a worker employed less than six months is made over the entire period of employment.

COVID-19 Supplemental Paid Sick Leave shall be the higher of the worker’s regular rate of pay, state minimum wage, or local minimum wage.  However, Supplemental Paid Sick Leave for a food service worker cannot exceed $511 per day or $5,110 total.

Supplemental Paid Sick Leave is in addition to sick leave available to the workers under California’s state sick leave law (Cal. Labor Code sec. 246). Hiring entities may not require food sector workers to use any other paid or unpaid time off before the food sector worker uses COVID-19 Supplemental Paid Sick Leave, or in lieu of COVID-19 Supplemental Paid Sick Leave.

Request for Leave

COVID-19 Supplemental Paid Sick Leave for California workers must be made available for immediate use by the food sector worker upon the oral or written request of the food sector worker to the hiring entity.  Food sector workers may determine how many hours of such leave to use up to the total number of hours to which the food sector worker is entitled.

Enforcement of Supplemental Paid Sick Leave Requirements

The Order authorizes the Labor Commissioner to enforce its provisions and food sector workers may file a complaint with the Labor Commissioner for alleged violations.  The Labor Commissioner is required to issue a model notice of the Order’s supplemental paid sick leave by April 23, 2020.

The requirement to provide COVID-19 Supplemental Paid Sick Leave is effective during the pendency of any statewide stay-at-home orders, except that food sector workers taking such leave at the time of the expiration of all such orders shall be permitted to take the full amount of leave to which the worker is otherwise entitled.

Businesses that Are Already Providing Paid Leave for COVID-19 Related Reasons

The Order contains an exemption for hiring entities who—as of the effective date of the Order—provide paid leave for a COVID-19 related reason that would compensate the employee in an amount equal or greater than the amount the employee would be compensated through taking COVID-19 Supplemental Paid Sick Leave.

Protection Against Retaliation

The Order makes clear that workers who use COVID-19 Supplemental Paid Sick Leave or who attempt to exercise their rights to it are protected from retaliation under Labor Code section 246.5(c).

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Keeping up with COVID-19 related employment rights and obligations requires constant attention to federal, state and local developments.  If you have questions or concerns about how COVID-19 impacts your obligations as an employer, please contact the Rogers Joseph O’Donnell attorney with whom you regularly work or a member of our employment law team at employmentlaw@rjo.com.   We are here to help.

[1] Executive Order N-33-20