Overview
For additional guidance, please refer to Steptoe's COVID-19 Resource Center.
California Governor Gavin Newsom recently issued a new paid sick leave order impacting many retail grocery employers and their employees in California. The Governor issued Executive Order N-51-20 (the order) to provide relief to frontline workers in the food industry "to make sure they are taken care of at home and in the workplace."[1] The order supplements COVID-19 paid sick leave issued under the Federal Families First Coronavirus Response Act (FFCRA) (which only applies to employers with 500 or few employees) and requires larger food supply-sector employers to provide paid sick leave. You can review the order here.
The Order Applies to:
A "Hiring Entity," which the order broadly defines as any private entity that has 500 or more employees in the United States. The number of employees are determined as described in the FFCRA §826.40(a)(1)-(2). "[A]ny Hiring Entity shall be considered an 'employer.'"
The Order Provides Additional COVID-19-Related Paid Sick Leave to:
"Food Sector Workers," which the order defines as:
1. Individuals working in one of the following:
a. Industries/occupations defined in California's Industrial Welfare Commission Wage Orders:[2]
i. 3-2001 (canning, freezing, and preserving industry);
ii. 8-2001 § 2(H) (industries handling products after harvesting);
iii. 13-2001 §2(H) (industries preparing agricultural products for market, on the farm); or
iv. 14-2001 §2(D) (agricultural occupations); or
b. A Hiring Entity that operates a "food facility" (i.e., an "operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level" as defined in Health and Safety Code §113789(a)-(b); or
c. Delivery of food from a food facility as defined above
2. A person exempt from the statewide stay-at-home order as an Essential Critical Infrastructure; and
3. A person that leaves their residence to perform work for a Hiring Entity.
Under the order, "all Food Sector Workers shall be considered 'employees.'"
Under the Order, a Hiring Entity Must Provide a Food Sector Worker the Additional Leave:
Immediately when the Food Sector Worker provides "oral or written request" and is:
1. "Subject to Federal, State, or local quarantine or isolation order related to COVID-19";
2. "Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19"; or
3. "Prohibited from working by . . . the Hiring Entity due to health concerns related to the potential transmission of COVID-19."
Additionally, the Food Sector Worker makes the determination of how many hours to use of the COVID-19 Supplemental Paid Sick Leave up to the amount entitled under the order.
The Order Requires a Hiring Entity to Provide:
Up to 80 hours to Food Sector Workers considered "full-time" by the Hiring Entity or that worked at least 40 hours per week in the two weeks before taking the COVID-19 Supplemental Paid Sick Leave.
For workers that worked less than 40 hours or not considered full-time either: (1) the total hours normally scheduled over a two-week period or (2) if working a variable schedule, 14 times the average number of hours worked in the past six months or since working for the Hiring Entity.
The COVID-19 Supplemental Paid Sick Leave is in addition to leave available under California Labor Code §246.[3]
Additional Instructions From the Governor:
Employees working in a "food facility" as described above, must be permitted to "wash their hands every 30 minutes and additionally as needed."
Hourly Rate:
The Hiring Entity must pay each hour of COVID-19 Supplemental Paid Sick Leave at the highest of the: (1) regular rate of pay of Food Sector Worker's last pay period; (2) California minimum wage; or (2) local minimum wage.
However, the pay is capped at $511/day and $5,110 in the aggregate per Food Sector Worker while the order is in effect.
Expiration of Order:
The requirement to provide COVID-19 Supplemental Paid Sick Leave is effective during "the pendency of any statewide stay-at-home orders issued by the State Public Health Officer." However, a Food Sector Worker on COVID-19 Supplemental Paid Sick Leave at the expiration of any stay-at-home order must be permitted to take the full amount of leave he or she is entitled to under the order.
Potential Consequences for Failure to Comply:
Food Sector Workers may file a complaint with the California Labor Commissioner, which will enforce the order.
Violations of the order is subject to the remedies provided under California laws, such as the Unfair Competition Law.
Hiring Entities are required to disseminate notice of the model order that the Labor Commissioner is supposed to make publicly available by April 23, including by electronic means.
[1] https://www.gov.ca.gov/2020/04/16/governor-newsom-announces-paid-sick-leave-benefits-for-food-sector-workers-impacted-by-covid-19-additional-protections-for-consumers/
[2] https://www.dir.ca.gov/iwc/WageOrderIndustries.htm
[3] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=246.&lawCode=LAB