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Aug 20, 2020

WASHINGTON: Governor grants leave for food production workers

COVID-19Leave LawsWage and Hour 

On August 13, 2020, Governor Jay Inslee signed Proclamation 20-67, providing paid leave for food production worker absences related to COVID-19 (coronavirus). This new proclamation took effect on August 18, 2020, and significantly impacts employers operating in the agriculture sector. The proclamation doesn’t protect workers covered by the Families First Coronavirus Response Act (FFCRA), so if your company is too big to be covered by the FFCRA, keep reading. According to Governor Inslee’s press release, Washington’s Department of Commerce is responsible for issuing guidance on the possible reimbursement of paid leave provided under this proclamation. The department has established a webpage for the COVID-19 Food Production Worker Paid Leave Program, which is short on specifics but says more information is coming. We’ll report those details when they become available. In the meantime, here’s what we know:

Effective date and duration: Effective August 18, 2020, through November 13, 2020, or the end of the governor’s State of Emergency, whichever happens first.

Covered employers: Any employer who employs any individual outside of the covered employer’s immediate family, including: (1) operators of orchards, fields, and dairies; (2) nearly all farming and ranching industries identified in Washington Administrative Code (WAC) 296-307-006, except timber tracts, Christmas tree growing, tree farms, forest nurseries, and forestry services; (3) fruit and vegetable packing warehouses; (4) meat and seafood processors and packers; and (5) farm labor contractors.

Covered workers: Any food production workers who provide services to a covered employer and aren’t covered under the FFCRA, including: (1) Washington State-based workers; (2) seasonal or migrant workers, as defined by the federal Migrant and Seasonal Agricultural Worker Protection Act; and (3) temporary foreign workers providing agricultural labor services.

Qualifying events: There are four qualifying events, in which a covered worker: (1) is subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) is advised by a health care official or provider to self-quarantine or self-isolate due to concerns related to or a positive diagnosis of COVID-19; (3) is prohibited from working due to health concerns related to the potential transmission of COVID-19; or (4) is experiencing COVID-19 symptoms and seeking a medical diagnosis.

Paid leave: Covered employers must provide covered workers experiencing a qualifying event up to 80 hours of paid leave. The amount a covered worker is entitled to depends on how much they work. Covered workers scheduled to work full-time or at least 40 hours in the two weeks before the qualifying event are entitled to 80 hours. Covered workers scheduled to work less than full-time and fewer than 40 hours in the two weeks before the qualifying event are entitled to either (1) the total number of hours the covered worker was normally scheduled to work during that two week period; or (2) if the covered worker works a variable number of hours, 14 times the average number of hours they worked each day in the period before the qualifying event.

Substitution with existing forms of company-provided paid sick leave: Covered employers must substitute any available company-provided paid sick leave, including paid sick leave under the Washington Paid Sick Leave (WPSL) law, for this paid leave. For example, if at the time of a qualifying event, a full-time covered worker has 40 hours of paid time off (PTO) available, which the covered employer provides to comply with WPSL, the covered employer must: (1) apply those 40 PTO hours to qualifying events under this food production worker paid leave entitlement; and then (2) provide the food production worker paid leave time for the remaining 40 hours. Caution: Because Washington employers can’t force employees to use WPSL, it’s unclear what happens to the paid leave entitlement for food production workers if an employee refuses to use their available WPSL. If this occurs, contact your Vigilant Law Group employment attorney to discuss your options.

Availability of paid leave: Beginning on the effective date, covered workers must receive the paid leave for the duration of any qualifying event, subject to the maximums discussed above.

Rate of pay and compensation maximums: Each hour of paid leave not being substituted with existing company-provided paid sick leave must be compensated at a rate equal to $430.00 for 40 hours, up to a maximum of $860.00 for 80 hours. In essence, covered employers must pay covered workers $10.75 per hour for each hour of food production worker paid leave, up to the stated maximums. For example, let’s assume a covered worker has a qualifying event and is eligible for 80 hours of food production worker paid leave. Let’s also assume the covered worker currently has 40 hours of PTO available (which the company uses to comply with WPSL). Under this scenario, the covered worker would receive 40 hours of PTO at their normal rate, followed by 40 hours of food production worker paid leave at $10.75 per hour.

Covered employer reimbursement from state: A $3 million fund was created to support this program. The Department of Commerce webpage for the program says employers will be able to apply for reimbursement after the leave program expires on November 13, 2020. We anticipate that the state will reimburse covered employers for pure food production worker paid leave under the proclamation, but not for any substituted paid leave that’s available under normal company policy. We’ll report on details when they become available from the Department of Commerce.

Prohibited actions: Employers can’t take any adverse actions against an individual for using or trying to use the paid leave for food production workers.

Penalties: The proclamation prohibits covered employers from operating if they don’t comply, and says violators may be subject to criminal penalties.

Tips: This proclamation raises a significant number of questions, which we hope the governor or the Department of Commerce will help answer, so we’ll continue to monitor and report on significant developments. In the meantime, as individuals need leave associated with COVID-19, you should: (1) determine if you’re a covered employer; (2) determine if the specific individual is a covered worker; (3) if the answer is yes to both, determine if the situation is a qualifying event; (4) if the answer is yes to the first three questions, substitute as much existing company-provided paid sick leave as possible, and if there are no hours to substitute or the qualifying event exceeds the number of available hours, provide the paid leave for food production workers (subject to the caps described above). Please contact your Vigilant Law Group employment attorney if you need assistance.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.

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