In recent weeks, San Jose and Los Angeles have passed ordinances to provide supplemental paid sick leave to employees not otherwise covered by the recently enacted federal Families First Coronavirus Response Act (FFCRA). San Francisco has a similar ordinance pending. On April 16^th, Governor Newsom issued Executive Order N-51-20, which provides COVID-19 related paid sick leave for “food sector workers” throughout the state who work for larger employers.

What employers are covered?

As the order is intended to cover perceived gaps in the FFCRA, it applies to employers with 500 or more employees located anywhere in the United States. To determine the number of employees, the order refers to the FFCRA regulations addressing that issue.

The order specifically includes any Delivery Network Company (as defined in Revenue and Taxation Code section 6041.5(b)) and any Transportation Network Company (as defined in Public Utilities Code section 5431(c)) with 500 or more employees.

What is the definition of a Food Sector Worker?

The order includes a broad swath of employees in the food sector. In addition to working in one of the industries listed below, the person must (1) leave his/her home or place of residence to perform work and (2) be considered an “essential critical infrastructure worker” and not be subject to the Governor’s Executive Order N-33-20 or any other statewide stay-at-home order.  The order includes individuals working in the following industries:

• Employees engaged in the canning, freezing, and preserving industry, as defined under Wage Order 3-2001 section 2(B).

  • This includes any industry, business, or establishment operated for canning soups, or of cooking, canning, curing, freezing, pickling, salting, bottling, preserving, or otherwise processing any fruits or vegetables, seafood, meat, poultry or rabbit product, when the purpose of such processing is the preservation of the product and includes all operations incidental to that preparation.

• Employees engaged in industries handling products after harvest, as defined under Wage Order 8-2001 section 2(H).

  • This includes any industry, business, or establishment operated for grading, sorting, cleaning, drying, cooling, icing, packing, dehydrating, cracking, shelling, candling, separating, slaughtering, picking, plucking, shucking, pasteurizing, fermenting, ripening, molding, or otherwise preparing any agricultural, horticultural, egg, poultry, meat, seafood, rabbit, or dairy product for distribution, and includes all the operations incidental to that handling/preparation.

• Employees engaged in industries preparing agricultural products for market, on the farm, as defined under Wage Order 13-2001 section 2(H).

  • This includes any operation performed in a permanently fixed structure or establishment on the farm or a moving packing plant on the farm to prepare agricultural, horticultural, egg, poultry, meat, seafood, rabbit, or dairy products for market when such operations are done on the premises owned or operated by the same employer who produced these products and includes all operations incidental to that preparation.

• Employees employed in an agricultural occupation, as defined under Wage Order 14-2001 section 2(D).

• Employees who work for an employer that operates a food facility, as defined under Health and Safety Code section 113789 (a)-(b).

• Employees who deliver food from a food facility, as defined under Health and Safety Code section 113789 (a)-(b).

When can a Food Sector Worker take supplemental paid sick leave?

Eligible employees can take supplemental paid sick leave if the employee is unable to work because:

• The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;

• The employee is advised by a healthcare provider to self-quarantine or self-isolate due to concerns related to COVID-19; or

• The employee is prohibited from working by the employer due to health concerns related to the transmission of COVID-19.

What are the entitlements?

Full-time Food Sector Workers are entitled to 80 hours of supplemental paid sick leave. A full-time worker is defined as either an employee (1) defined by the employer as “full-time” or (2) who worked an average or 40 hours in the two weeks preceding the date the employee takes the sick leave.

For employees who do not qualify as full-time but do have a normal weekly schedule, their hourly entitlement is the amount of the employee’s normal weekly schedule over a two-week period.

For employees who do not qualify as full-time and work a variable schedule, their hourly entitlement is 14 times the average number of hours they worked each day for the employer in the six months preceding the date the leave is taken (or during their entire employment if the employee has worked for less than six months).

The supplemental paid sick leave is in addition to the sick leave available to employees under the California state paid sick leave law.  Employees have the right to determine how many hours of supplemental paid sick leave to use. An employer may not require an employee to exhaust other paid or unpaid leave entitlements before using supplemental paid sick leave under this order.

An employer is not required to provide this supplemental paid sick leave to a Food Sector Worker if the employer, as of the effective date of the order, provides paid leave to the employee for these COVID-19 reasons, and the benefit is greater than or equal to the value of this supplemental paid sick leave.

Rate of Pay for Supplemental Paid Sick Leave

Food Sector Workers taking supplemental paid sick leave must be paid at the greater of the following:

• The employee’s regular rate of pay for the last pay period before the leave is taken;

• The state minimum wage; or

• The local minimum wage.

Mirroring the FFCRA, the total amount paid is capped at no more than $511 per day and $5,110 in the aggregate over the period the order is in effect.

Additional Requirements

By not later than April 23, 2020, the Labor Commissioner is required to make public a model supplemental sick leave notice for employers to post.  If food sector workers do not frequent the workplace, the employer may transmit the notice to the employees electronically.

Besides the supplemental paid sick leave requirements, employees working in a food facility as defined by the health and safety code must be permitted to wash their hands every 30 minutes and additionally as needed.

The supplemental paid sick leave requirements will remain in effect for the duration of any statewide shelter-in-place orders issued by the State Public Health Officer. However, if a Food Sector Worker is taking supplemental paid sick leave at the time the orders expire, the employer must permit the employee to take the full amount of leave to which the employee would have otherwise been entitled.