California Governor Gavin Newsom recently issued Executive Order N-51-20, providing food sector workers with up to 80 hours of “COVID-19 Supplemental Paid Sick Leave” if they perform work “for or through” a business that employs 500 or more employees in the U.S. This amount is in addition to any already accrued California paid sick leave.
The intent is to offer a benefit similar to that provided by the Families First Coronavirus Response Act (FFCRA), which as we previously reported, provides up to 80 hours of emergency paid sick leave for six specified COVID-19 related reasons to employers with fewer than 500 employees. This new order helps fill some of the gap left by the FFCRA by offering a comparable benefit to food sector workers who wouldn’t otherwise be covered by the FFCRA and need time off related to their own health condition. (Unlike the FFCRA, California’s COVID-19 Supplemental Paid Sick Leave doesn’t cover time off to care for others.) The order explains in detail how to calculate the rate of pay and caps it at the same levels as the FFCRA, i.e., a maximum of $511 per day and $5,110 total for 80 hours of paid sick leave.
To be eligible for COVID-19 Supplemental Paid Sick Leave, a food sector worker in California must be unable to work for or through a covered business for one of the following reasons: (1) They’re subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) They’re advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or (3) You as a covered business prohibit them from working due to health concerns related to the potential transmission of COVID-19.
Food sector workers are defined specifically in the order. They must be essential critical infrastructure workers who are exempt from the governor’s stay-at-home order (Executive Order N-33-20) and who need to leave home to perform work for or through a covered business. In addition, they must do one of the following:
- Work in one of the industries or occupations defined in Industrial Welfare Commission (IWC) Wage Orders No. 3 (Canning, Freezing, and Preserving Industry) Section 2(B); No. 8 (Industries Handling Products After Harvest) Section 2(H); No. 13 (Industries Preparing Agricultural Products for Market, on the Farm) Section 2(H); or No. 14 (Agricultural Occupations) Section 2(D);
- Work for a covered business that operates a food facility, as defined in Health and Safety Code section 113789 (a)-(b); or
- Deliver food from a food facility, for or through a covered business.
In addition to the above requirements, the new order permits employees working in any food facility to “wash their hands every 30 minutes and additionally as needed.”
Tips: This new order took effect on April 16, 2020, and remains in effect until further notice. The order directs the Labor Commissioner to issue a model notice (workplace poster) for COVID-19 Supplemental Paid Sick Leave by April 23, 2020. The poster hasn’t yet been made available; when it is, we’ll add it to the list of government posters on our member website and provide a link in our next newsletter. For workers who don’t come to a central workplace, you may satisfy the notice requirement by distributing the poster electronically. [Update: During the evening of April 23, after publication of this article, the poster became available here.]
The Division of Labor Standards Enforcement (DLSE)’s FAQs provide helpful guidance on the order. The FAQs point out the surprising fact that food sector workers don’t necessarily need to be employees of a covered business (referred to as a “hiring entity”) in order to be eligible for this paid sick leave through their own employer. First the DLSE tallies up the number of U.S employees at a business to see if they equal at least 500. If the answer is yes, then the DLSE determines whether there are any food sector workers who perform work “for or through” that covered business. It’s possible that a small employer might provide food sector workers to a covered business, and as a result the small employer would have to provide paid leave under this order. Review the full executive order for more details and contact your Vigilant Law Group employment attorney with any questions.
This article has been revised to reflect the following correction:
Correction: June 3, 2020
The FFCRA cap on pay was originally described as $511 per day and $5,110 per week. This was corrected to $511 per day and $5,110 total for 80 hours of paid sick leave.
