Supplemental Paid Leave for Illness Related to COVID-19: A New Cost of Business for Large California Food Companies?

On Thursday, April 16, 2020, Governor Gavin Newsom signed Executive Order N-51-20 (the “Executive Order”), effective immediately. The Executive Order requires all food sector businesses that employee 500 or more “food sector workers” – whether in California or nationwide – to provide COVID-19 Supplemental Paid Sick Leave. The businesses subject to the Executive Order’s reach ranges from farm to table. The Executive Orders requires that supplemental paid sick leave be extended to workers at farms, suppliers, manufacturers, warehouses, distributors, fast food restaurants, delivery companies, and grocery stores. This coverage applies to all food sector workers who perform work for the hiring entity, regardless of whether they are deemed employees of that hiring entity. That’s right – this applies to independent contractors. And, it applies to both full and part-time workers.

Who Is Covered?

The Executive Order applies to Food Sector Workers and Hiring Entities.

A “Food Sector Worker” is any person who:

• works in the canning, freezing and preserving industry;
• works in the agricultural product processing industry;
• works in facilities on a farm that prepare products for market;
• has some other general agricultural occupation;
• works for a Hiring Entity that operates a food facility as defined in Health and Safety Code Section 113789 (i.e., “an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level”); or
• delivers food from a food facility for or through a Hiring Entity.

To be covered, the person must also be exempt from Governor Newsom’s March 20^th executive order directing all individuals living in the State of California to stay home or at their place of residence, except as to maintain continuity of operations of the federal critical infrastructures (or any other statewide stay-at-home order), and that person must leave his/her home to perform work for or through a Hiring Entity.

A “Hiring Entity” means “any kind of private entity whatsoever” including a delivery or transportation company that has 500 or more employees in the United States.

What Leave Must Be Provided?

There are four categories of coverage provided by the Executive Order.

• A Food Sector Worker who is employed full time or who worked, or was scheduled to work, at least forty (40) hours in each of the two weeks before the leave date are entitled to receive eighty (80) hours of leave.
• A Food Sector Worker who does not meet these requirements, but otherwise has a normal weekly schedule, is entitled to leave equaling the total number of hours that he/she is normally scheduled to work over a two week period.
• If a Food Sector Worker does not have a normal weekly schedule, then he/she is entitled to fourteen times (14x) the average number of hours the Food Sector Worker worked each day for or through the Hiring Entity in the six (6) months preceding the leave date.
• If the Food Sector Worker has worked for the Hiring Entity less than six months, then he/she is entitled to fourteen times (14x) the average number of hours over the entire period that he/she has worked for the Hiring Entity.

When Can This Leave Be Taken?

A Food Sector Worker who is subject to a Federal, State or local quarantine or isolation order related to COVID-19, who is advised by a healthcare provider to self-quarantine due to COVID-19 related concerns, or who is prohibited from working by his/her Hinging Entity due to health concerns related to potential transmission of COVID-19 may take this supplemental leave.

What Is The Amount Of The Supplemental Paid Sick Leave?

Each hour of COVID-19 Supplemental Paid Sick Leave shall be paid at a rate equal to the highest of:

• the Food Sector Worker’s regular rate of pay for the last pay period;
• CA minimum wage; or
• the applicable local minimum wage.

No Hiring Entity is required to pay more than $511 per day and $5,110 in the applicable two week leave period. However, a Hiring Entity will be exempt from the Executive Order if it pays an amount equal or greater than what is required by the Order.

What Must Hiring Entities Avoid?

A Hiring Entity cannot require a Food Sector Worker to use any other paid or unpaid leave, PTO, or vacation time before he/she uses the COVID-19 Supplemental Paid Sick Leave. A Hiring Entity cannot retaliate against or fire a Food Sector Worker who exercises his/her rights under the Executive Order. A Hiring Entity cannot delay leave when requested by a Food Sector Worker (assuming that he/she satisfies the conditions for such leave).

The California Labor Commissioner is empowered to enforce violations of the Executive Order, and any Food Sector Worker may file a complaint with the Labor Commissioner for alleged violations.

Stay Tuned

The COVID-19 Supplemental Paid Sick Leave requirement remains effective for the duration of any statewide stay-at-home order, and workers who are on leave when such order is rescinded are entitled to take the full amount of leave. How long the statewide stay-at-home order will be in effect is anyone’s guess at this point.

Additionally, on Thursday, April 23, 2020, the Labor Commissioner will publish a model notice of this new supplemental leave requirement. Notice must be conspicuously posted in the workplace, but if a Hiring Entity’s Food Sector Workers do not frequent a workplace (ex. delivery drivers), the Hiring Entity my disseminate the required notice by electronic means (ex. email).

Of particular interest is how this leave is to be paid for. While the Families First Coronavirus Response Act (which applies to food businesses with less than 500 employees) allows for businesses to obtain a tax credit, there is no similar provision in the Executive Order. Perhaps Governor Newsom or the state legislature will address this issue in the near future. Until, then, Hiring Entities should assume that they are footing the bill.

Wash Your Hands – A Worker’s Right

Among all the other rights afforded to Food Sector Workers under the Executive Order, the easiest one to comply with is that such workers must be allowed to wash their hands at least every thirty (30) minutes. Local public health agencies are empowered to enforce this health and safety measure.