On April 16, 2020, California Governor Gavin Newsom signed Executive Order N-51-20 (“Executive Order”), mandating supplemental paid sick leave for food sector workers at companies (i.e., “Hiring Entities”) with 500 or more employees. The Executive Order should help fill a gap for essential food sector workers left open under the federal Families First Coronavirus Relief Act (“FFCRA”) (previously discussed here).
The Executive Order is effective immediately and remains effective during any statewide stay-at-home order. Like the recently enacted Supplemental paid sick leave under the Executive Order ordinance passed by the Los Angeles City Council larger employers in the food sector must quickly become familiar with this order.
The Executive Order covers all private entities utilizing food sector workers with 500 or more employees in the United States. Employees are counted the same way as in the FFCRA, 29 C.F.R. § 826.40.
Excluded from the Executive Order are hiring entities that provide paid benefits that will compensate workers for the same purposes as the Executive Order and at a level at least equal to the benefits provided under the Executive Order as of April 16, 2020.
Public employers are not subject to the Executive Order.
The Executive Order applies to all food sector workers who perform work for or through the hiring entity, regardless of whether they are deemed employees of the hiring entity. Both full and part-time workers are covered under the Ordinance.
The food sector workers the Executive Order covers ranges from farmworkers to those workers who work in the retail food supply chain, including pick-up, delivery, supply, packaging, retail, or preparation. Eligible workers include grocery workers, restaurant or fast-food workers, workers at warehouses where food is stored, and workers who pick-up or deliver any food items.
To qualify for Supplemental paid sick leave under the Executive Order, the food sector worker must perform work for or through a hiring entity with over 500 employees nationwide and:
- be exempt from the Stay-at-Home Order (EO N-33-20);
- perform work for the business outside the home; and
- satisfy one of the following:
- Work in one of the industries or occupations defined in Industrial Welfare Commission (“IWC”) Wage Order 3-2001 § 2(B) (the canning, freezing, and preserving industry); IWC Wage Order 8-2001 § 2(H) (industries processing agricultural products after harvest); IWC Wage Order 13-2001 § 2(H) (facilities on a farm that prepare products for market); or IWC Wage Order 14-2001 § 2(D) (general agricultural occupations);
- Work for a business that runs a food facility, which includes grocery stores, fast-food restaurants, and distribution centers; or
- Deliver food from a food facility for or through a hiring entity.
What Benefits Must Be Provided
The food sector worker is entitled to supplemental paid sick leave at an hourly rate equal to the highest of:
- the worker’s regular rate of pay for the last pay period;
- the State minimum wage; or
- the local minimum wage
A hiring entity does not have to pay supplemental paid sick leave more than $511 per day and $5,110 in aggregate total–matching the maximum benefits under the Emergency Paid Sick Leave Act (“EPSLA”)–to a food sector worker. Unlike the EPSLA, there are no tax credits or other government reimbursements available for the sick leave required by the Executive Order.
Full-time workers or workers scheduled to work an average of at least 40 hours per week in the two weeks before the leave is taken is entitled to 80 hours of supplemental paid sick leave under the Executive Order.
Part-time workers are entitled to supplemental paid sick leave equal to the number of hours the worker is normally scheduled to work over two weeks if the food sector worker has a normal weekly schedule.
For part-time workers who have variable 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 takes supplemental paid sick leave. If the part-time worker has worked for the hiring entity for fewer than six months, the number of hours is calculated over the entire period that the worker has worked for the hiring entity.
When Benefits Be Provided
A food sector worker is entitled to supplemental paid sick leave if the worker cannot work because:
- the worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- the worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
- the worker is prohibited from working by the worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.
If a stay home order or medical professional recommends that a hiring entity require the food sector worker to stay home, then a worker is eligible for supplemental paid sick leave under the Executive Order.
A hiring entity must provide supplemental paid sick leave to a food sector worker immediately upon the oral or written request of the worker.
The Executive Order remains effective during any statewide stay-at-home order. A food sector worker taking supplemental paid sick leave when a statewide stay-at-home order expires can take the full leave.
Any operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level must permit workers to wash their hands every 30 minutes and additionally as needed. This requirement will be enforced by local public health agencies.
The Executive Order provides that workers using or attempting to exercise their rights to supplemental paid sick leave under the Executive Order are protected from retaliation. In addition, other provisions of the Labor Code may protect workers from retaliation.
Hiring entities must display a poster in a conspicuous place that contains information about supplemental paid sick leave under the Executive Order. If a hiring entity’s food sector workers do not frequent a workplace, the hiring entity may satisfy the notice requirement by disseminating notice by electronic means. The Labor Commissioner will provide additional guidance on notice requirements by April 23, 2020.
While there is some question of whether the Governor’s powers under the Emergency Services Act extend to this type of mandate and it therefore may be subject to judicial challenge, covered entities should immediately familiarize themselves with the Executive Order and be prepared to provide the mandated supplemental sick leave to covered workers. A FAQ provided by the DFEH is available here.