On April 16, 2020, California Governor Newsom signed Executive Order N-51-20, requiring qualifying "hiring entities" to provide two weeks of supplemental paid sick leave for "food sector workers" in response to the COVID-19 pandemic. The Order is in addition to orders already adopted by multiple localities that have implemented emergency paid sick leave ordinances (see our related advisories here).

The Order applies to large entities that are not already required by the federal Families First Coronavirus Response Act (FFCRA) to provide supplemental paid sick leave. However, unlike the FFCRA, the Order makes no provision for businesses to receive tax credit to offset the cost associated with the supplemental leave.

The Department of Industrial Relations has issued FAQs, which provide guidance for interpreting and applying the Order.

What Businesses Are Required To Provide Supplemental Paid Sick Leave Under the Order?

The Order applies to all private entities that have 500 or more "employees" in the United States, calculated in the same manner as the FFCRA (see our related advisories here). Public employers are exempt because the FFCRA covers them.

What Workers Are Entitled to Supplemental Paid Sick Leave?

The Order applies to food sector "workers" who perform work for or through a "hiring entity"; thus the Order covers both employees and independent contractors.

Supplemental paid sick leave is available to food sector workers who meet three requirements:

  1. The worker is considered an essential critical infrastructure worker and is thereby exempt from the statewide Stay-at-Home Order; and
  2. The worker leaves their residence to perform work for or through the hiring entity; and
  3. The worker satisfies one of the requirements below:
    • The worker works in an industry or occupation defined in Wage Order 3 (Canning, Freezing, and Preserving Industry), Wage Order 8 (Industries Handling Products After Harvest), Wage Order 13 (Industries Preparing Agricultural Products for Market, On The Farm), or Wage Order 14 (Agricultural Occupations); or
    • The worker works for a hiring entity that operates a food facility, which includes grocery stores, fast-food and take-out restaurants, and distribution centers; or
    • The worker delivers from a food facility for or through a hiring entity.

According to the DIR's FAQs, "food sector" workers range from farmworkers to workers in the retail food supply chain, including pick-up, delivery, supply, packaging, retail, or preparation, including grocery workers, restaurant or fast food workers, workers at warehouses where food is stored, and workers who pick up or deliver food items.

How Much Supplemental Paid Sick Leave Must Be Provided?

Workers considered full-time by their hiring entity or who work (or are scheduled to work) at least an average of 40 hours per week in the two weeks prior to using the leave are entitled to 80 hours of supplemental paid sick leave. Part-time food sector workers are entitled to the number of hours of paid sick leave equivalent to what they were normally scheduled to work over two weeks. For a part-time worker who works a variable number of hours, the worker may take fourteen times the average number of hours the worker worked each day for or through the hiring entity in the six months preceding the date the food sector worker took supplemental paid sick leave. If the part-time worker has worked for the hiring entity for fewer than six months, this calculation would be done over the entire period that the worker has worked for the hiring entity.

Supplemental paid sick leave is immediately available to workers, and workers may determine how many hours to use.

Workers cannot be required to use other paid or unpaid leave, paid time off, or vacation time before using supplemental paid sick leave.

For What Reasons May a Qualifying Worker Take Supplemental Paid Sick Leave?

Supplemental paid sick leave can be used when the worker is unable to work because:

  • The worker is subject to a federal, state, or local COVID-19 quarantine or isolation order; or
  • The worker is advised by a healthcare provider to isolate or self-quarantine due to COVID-19 concerns; or
  • The worker is prohibited from working by the hiring entity due to COVID-19 transmission concerns.

The FAQs clarify that if a stay-at-home order or a medical professional recommends, or a hiring entity requires, the food sector worker to stay home, then a worker is eligible for COVID-19 supplemental paid sick leave.

Workers may request this leave orally or in writing.

What Is the Rate of Pay?

The food sector worker is entitled to the highest of the following:

  • The worker's regular rate of pay for the last pay period;
  • The State minimum wage; or
  • The local minimum wage.

However, hiring entities are not required to pay more than $511 per day or $5,110 in the aggregate to each worker.

Is There an Exception for Hiring Entities That Already Provide Sick Leave?

Maybe. Supplemental paid sick leave must be provided in addition to the sick leave required under California's paid sick leave law (Labor Code §246). However, hiring entities do not have to provide supplemental paid sick leave if, as of the effective date of the order (April 16, 2020), the entity provides a "supplemental benefit" in the form of paid leave that can be used for the reasons identified in the Order. That pre-existing leave must compensate the worker in an amount equal to or greater than the amount required by the Order. The Order does not define "supplemental benefit," and it is unclear to what extent a business may rely on leave provided under pre-existing sick time, vacation, or paid time off policies, or paid leave provided under a local COVID-19 paid leave requirement. This advisory will be updated as more guidance is issued in the coming days and weeks.

Handwashing Requirement

The Order requires any operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level to permit workers to wash their hands every 30 minutes and additionally as needed. This will be enforced by local public health agencies.

Posting and Distribution Requirements

Under the Order, hiring entities are required to display a poster in a conspicuous place that contains information about supplemental paid sick leave. If a hiring entity's food sector workers do not frequent a workplace, the hiring entity may satisfy the notice requirement by disseminating notice through electronic means, such as email.

The notice provided by the Labor Commissioner can be found here.

Duration of Order

The Order will remain in effect during the pendency of any California statewide stay-at-home orders. Workers on leave at the time of the Order's expiration must be permitted to take the full amount of supplemental paid sick leave provided by the Order.

Employer COVID-19 Resources

Employers are encouraged to consult counsel as they confront the unique challenges of managing a workforce during the COVID-19 pandemic, and as they consider policy changes necessary to comply with new legislation on the federal, state, and local levels.

DWT will continue to provide up-to-date insights and remote access events regarding COVID-19 concerns. For the most recent developments visit www.dwt.com/COVID-19.

To attend one of our free webinars covering a broad range of COVID-19 topics, please visit our Events page.