New Paid Supplemental Sick Leave for California Food Sector Employers

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Seyfarth Synopsis: On April 16, 2020, California Governor Gavin Newsom issued Executive Order N-51-20, requiring employers of Food Sector Workers to provide up to two weeks of Supplemental Paid Sick Leave (“SPSL”) to employees unable to work due to COVID-19. This Order aims to fill the void left by the federal Families First Coronavirus Response Act, which applies only to certain businesses with fewer than 500 employees. The Order is effective immediately and remains in place as long the statewide stay-at-home orders are active.

Coverage

The Order covers “Hiring Entities” that employ 500 or more Food Sector Workers nationwide. A Food Sector Worker is a person who is exempt from the stay-at-home requirements (see, e.g., Executive Order N-33-20), who must leave the residence to work for the employer, and who engages in at least one of the following activities:

(1)        Works in an industry or occupation defined in California Industrial Welfare Commission Wage Order 3 (Canning, Freezing and Preserving), Wage Order 8 (Handling Products After Harvest), Wage Order 13 (Preparing Agricultural Products for Market, on the Farm), or Wage Order 14 (Agriculture);

(2)        Works for a “food facility,” as defined in California Health and Safety Code Section 113789 (a)- (b) (generally, a facility that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level); or

(3)        Delivers food from a “food facility,” as defined in Section 113789 (a)- (b).

Employers must provide SPSL to Food Sector Workers who are unable to work because they are (1) subject to a quarantine or isolation order related to COVID-19, (2) advised by a health care provider to self-quarantine or self-isolate due to COVID-19, or (3) prohibited from working at the employer due to health concerns related to the potential transmission of COVID-19.

How Much SPSL Must Covered Employers Provide?

Employers must provide Food Sector Workers up to 80 hours of SPSL for the two-week absence period. A Food Sector Worker is entitled to 80 hours of SPSL if the worker is a full-time worker, or is scheduled to work at least 40 hours per week for the two weeks prior to the date the employee takes SPSL. Food Sector Workers who work fewer than 40 hours per week are entitled to twice their normally scheduled weekly hours for the two-week absence period. Employees who do not work a normal schedule must be paid fourteen times the average number of hours worked each day during the preceding six months from the date the employee takes SPSL.

SPSL must be available for immediate use by the employee upon request. SPSL is paid in addition to any sick leave to which the employee is entitled under California Paid Sick Leave (Labor Code Sections 245-249). Employers who, as of the effective date, provide a supplemental paid benefit equal to or in in excess of what is required under this Order are not required to provide SPSL. An employer may not require an employee to exhaust any other type of leave, vacation, paid or time off prior to using SPSL.

Payment of SPSL

Payment of SPSL must be paid at the highest of the following rates: (1) the regular rate of pay for the previous pay period; (2) the state minimum wage; or (3) the local minimum wage. The Order caps the amount of SPSL that must be paid at $511 per day, or $5,110 over the period the Order is in place. Payment of SPSL is due no later than the end of the pay period following the period in which the SPSL is taken.

Workplace Posting and Recordkeeping

Similar to California Paid Sick Leave, an employer must post in its workplace the information contained in Labor Code section 247(b) relating to SPSL. The Order also directs the California Labor Commissioner to make publicly available to employers a model notice by April 23, 2020. The notice may be delivered electronically for workers who do not frequent a workplace.

As with California Paid Sick Leave, employers must maintain records of SPSL used by the employee for at least three years.

Enforcement

The non-retaliation and anti-discrimination sections of California Paid Sick Leave apply to SPSL. The enforcement and penalty provisions of Labor Code section 248.5, including the right of a private entity to bring an enforcement action on behalf of the public, also apply to SPSL.

Hand Washing

The Order provides that employees who work in any “food facility” (as defined above) be permitted to wash their hands every 30 minutes, or more frequently as needed.

What this Order Means for Employers

Employers should analyze and determine whether their business and employees fall within the scope of this Order. If so, SPSL compliance begins immediately, with payment of SPSL due no later than the end of the next pay period. Covered employers also should ensure compliance with the calculation of and recordkeeping requirements of the Order. Finally, “food facility” employers must ensure that employees are permitted to wash their hands every 30 minutes or more frequently.