On April 16, 2020, Governor Newsom signed Executive Order N-51-20 (the “Order”), which requires hiring entities to provide up to 80 hours of supplemental paid sick leave to food sector workers for reasons related to COVID-19.

Newsom notes that food sector workers are on the front lines of the pandemic as essential critical infrastructure workers, and that despite the Families First Coronavirus Response Act (“FFCRA”) which provides emergency paid sick leave, many food sector workers still do not have access to benefits.  The FFCRA only applies to employers with fewer than 500 employees.  Newsom’s Order will attempt to bridge the gap by requiring that hiring entities with 500 or more employees provide supplemental paid sick leave to their food sector workers.

The key provisions of the Order are noted below.

What Qualifies as a Hiring Entity?  A hiring entity is a private entity, a delivery network company, or a transportation network company that has 500 or more employees.

  • A private entity is a sole proprietorship, corporation, partnership, limited liability company, limited liability partnership, or any other kind of business enterprise.
  • A delivery network company is a business entity that maintains an internet website or mobile application to facilitate the delivery of local products such as food from a local merchant (a third party such as a restaurant, grocery store, or retail store) to a customer.  Travel from the local merchant to the customer must not exceed 75 miles.
  • A transportation network company is an entity that provides prearranged transportation for compensation by way of an online platform that connects passengers and drivers who use a personal vehicle.

Who Qualifies as a Food Sector Worker?  An individual is a food sector worker if that individual meets the following three requirements:

  • The individual is exempt from Newsom’s Executive Order N-33-20 (shelter in place order) or any other statewide stay-at-home order due to being an Essential Critical Infrastructure Worker.
  • The individual leaves the home/residence to perform work for a hiring entity.
  • The individual meets one of the following:
    • The individual works in an industry that cans, freezes, or preserves food.
    • The individual works in an industry that handles products after harvest to prepare the food for distribution.
    • The individual works in an industry that prepares agricultural products on a farm for market.
    • The individual works in an agricultural operation.
    • The individual works for a hiring entity that operates as a food facility.
    • The individual delivers food from a food facility for or through a hiring entity.

A food facility is defined broadly.  It includes operations that store, prepare, package, serve, vend, or provide food for human consumption at the retail level.

When is a Food Sector Worker Eligible for COVID-19 Supplemental Paid Sick Leave?  A food sector worker is eligible if they are unable to work due to any of the following:  (1) The worker is subject to a Federal, State, or local quarantine or 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.  (3) The worker is prohibited from working by the hiring entity due to health concerns related to the potential transmission of COVID-19.

How Much COVID-19 Supplemental Paid Sick Leave is the Food Sector Worker Eligible For?  In addition to any California paid sick leave that is already available to the worker under Labor Code Section 246, the worker is eligible for:

  • 80 hours if the worker is full-time, or if the worker worked or was scheduled to work on average at least 40 hours per week in the 2 weeks preceding the date the worker took the supplemental paid sick leave.
  • Otherwise, if the worker has a normal weekly schedule, the worker gets the total number of hours the worker is normally scheduled to work over 2 weeks.  If the worker works a variable schedule, the worker gets 14 times the average number of hours the worker worked each day in the 6 months preceding the date the worker took the supplemental paid sick leave.  If the worker has worked for less than 6 months, the calculation is made over the entire period the worker has worked for the hiring entity.
  • The hiring entity is not required to provide more than the total number of hours of COVID-19 Supplemental Paid Sick Leave to which the worker is entitled (as detailed above).

Is Notice of COVID-19 Supplemental Paid Sick Leave Required to Be Given to Food Sector Workers?  It appears so.  The Order indicates that the Labor Commissioner will make a model notice available by April 23, 2020.  If food sector workers do not frequent the workplace, the notice may be disseminated by email.

When Must COVID-19 Supplemental Paid Sick Leave Be Made Available?  Immediately, upon the oral or written request of the worker.  The worker determines how many hours to use, up to the maximum to which the worker is entitled.  The worker cannot be required to use other leave, PTO, or vacation before using, or in lieu of using, the supplemental paid sick leave.

How Is COVID-19 Supplemental Paid Sick Leave Compensated?  Each hour is compensated at a rate equal to the highest of:  the worker’s regular rate of pay for the worker’s last pay period, the California minimum wage, or the local minimum wage to which the worker is entitled, maxing out at $511 per day and $5,110 in total.

What Other Elements of California’s Paid Sick Leave Law Are Incorporated into the Order?  The Order notes that the hiring entity shall provide payment for supplemental paid sick leave no later than the payday for the next regular payroll period after the sick leave was taken.  The Order also notes that a hiring entity cannot require the food sector worker to find coverage, cannot retaliate against the worker for using supplemental paid sick leave, and must maintain records for three years.

How Long Will COVID-19 Supplemental Paid Sick Leave Be in Effect?  Hiring entities are required to provide supplemental paid sick leave during the time that any statewide stay-at-home orders are in place.  However, if a food sector worker is taking supplemental paid sick leave at the time the stay-at-home orders expire, the worker is still entitled to take the full amount of leave that they would have been entitled to had the orders remained in effect.

What If the Hiring Entity Already Offers Supplemental Paid Sick Leave?  A hiring entity is not required to provide COVID-19 Supplemental Paid Sick Leave if it already provides supplemental paid leave that is available for the same reasons noted above and that would compensate the worker in an amount equal to or greater than the worker would otherwise be compensated for by taking COVID-19 Supplemental Paid Sick Leave.

What Are the Legal Consequences for Violating the Order?  A food sector worker may file a complaint with the Labor Commissioner.  The Labor Commissioner may seek remedies available under California’s Paid Sick Leave Law.  Other remedies may also be available, including those to rectify unlawful business practices.

Plus More Hand Washing!  The Order also indicates that employees working in any food facility are permitted to wash their hands every 30 minutes and additionally as needed.

Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace.  Stay informed on legal implications with Sheppard Mullin’s Coronavirus Insights Portal which now aggregates the firm’s various COVID-19 blog posts on a broad range of topics.

As you are aware, things are changing quickly and there is no clear-cut authority or bright line rules.  This is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand.  This article does not address other the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

*This alert is provided for information purposes only and does not constitute legal advice and is not intended to form an attorney client relationship.  Please contact your Sheppard Mullin attorney contact for additional information.*