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Executive Order Requires Large Employers To Provide COVID-19 Sick Leave To Food Sector Essential Workers
Apr 24, 2020

Executive Order Requires Large Employers To Provide COVID-19 Sick Leave To Food Sector Essential Workers

Topics: COVID-19, Employee Leave

Last week, Governor Newsom issued Executive Order N-51-20, requiring the food sector “hiring entities” with 500 or more employees in the US to provide paid sick leave to essential workers for certain COVID-19 related reasons called COVID-19 Supplemental Paid Sick.  A copy of the Executive Order is available here.  This Executive Order is intended to provide sick pay for essential food sector workers not covered by the federal Families First Coronavirus Response Act (FFCRA) for certain COVID-19 related reasons (Food sector workers working for larger employers).

The California Labor Commissioner’s office recently published FAQs on the new Executive Order.  Link available here.

Below are some key aspects of the Executive Order, as interpreted by the FAQs.

Q.  Which Employers Are Covered?

A.  This Executive Order applies to a “hiring entity” that has 500 or more employees nationwide, regardless of how many of those employees are located in California.  A hiring entity is broadly defined in the Executive Order, including any type of private sole proprietor or business entity (corporations. partnerships, LLCs, LLPs, Delivery Network Companies, Transportation Network Companies, etc.).  To determine the 500 employee threshold, a hiring entity counts employees broadly, in the same way as in the FFCRA, 29 C.F.R. § 826.40.  The Executive Order does not apply to public employers (which are covered by the FFCRA).

Q.  Which Workers Are Covered?

A.  In addition to the hiring entity size factor, to qualify for this paid sick leave, workers must be a food sector worker performing work and:

  1. be exempt from the Stay-at-Home Order (EO N-33-20);
  2. perform work for the business outside the home; and
  3. satisfy one of the following:
  • Work in one of the industries or occupations:
    • the canning, freezing, and preserving industry (IWC Wage Order 3-2001 § 2(B));
    • processing agricultural products after harvest (IWC Wage Order 8-2001 § 2(H));
    • facilities on a farm that prepare products for market (IWC Wage Order 13-2001 § 2(H));
    • general agricultural occupations (IWC Wage Order 14-2001 § 2(D));
  • Work for a business that runs a food facility, which includes grocery stores, fast-food restaurants, and distribution centers;
  •  any operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, or
  • Deliver food from a food facility for or through a hiring entity.

Thus, the type of food sector workers the Executive Order covers ranges from farmworkers to those workers who work in the retail food supply chain, including pick-up, delivery, supply, packaging, retail, or preparation.  This includes grocery workers, restaurant or fast-food workers, workers at warehouses where food is stored, and grocery and restaurant delivery.

While the Executive Order appears to require a covered hiring entity to provide sick pay to all food sector workers who perform work for or through the hiring entity, regardless of whether they are deemed employees of the hiring entity, persons receiving FFCRA paid sick should not be entitled to double-dip. 

Q.  What Illnesses Are Covered?

A.  To qualify for the sick pay, the food sector worker must be unable to work due to one of the following three reasons:

  1. The worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. The worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
  3. The worker is prohibited from working by the worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

Even if the worker is not sick with COVID-19, if a feed sector worker is exposed to someone diagnosed with COVID-19 or experiences symptoms and a stay-at-home order applies, a medical professional recommends self-quarantine or a hiring entity requires other workers to stay the food sector co-workers will be entitled to sick pay until they are allowed to return to work up to the limit allowed under the Executive Order.

Q.  What Triggers The Right To Supplemental Paid Sick Leave?

A.  The worker must make a verbal or written request to the hiring entity.  Currently, there does not appear to be any requirement for the worker to provide documentation, similar to other COVID-19 sick pay provisions. 

Q.  Are There Any Exceptions?

A.  Yes, if, on April 16, 2020, a hiring entity provided paid benefits to compensate workers for the same purposes as the Executive Order at an equal or higher level than the Executive Order, that hiring entity does is exempt from providing additional sick leave under the Executive Order.  Thus, these sick leave benefits are not in addition to what is already provided, if the employer’s existing sick leave/PTO policies would be applicable to the employees who qualify for sick leave under the Executive Order.

Q.  How Much Paid Sick Pay Do Full-Time and Part-Time Employees Get Under the Executive Order?

A.  Yes, a food sector worker who is considered full-time or who worked or was scheduled to work an average of at least 40 hours per week in the two weeks before the leave is taken is entitled to up to 80 hours of sick pay.

A part-time food sector worker with a regular weekly schedule is entitled to the number of hours he/she is normally scheduled to work over two weeks.  For a part-time worker with a variable schedule, the worker is entitled to up to fourteen times the average number of hours worked each day for or through that hiring entity in the prior six months.  For example, if the worker worked an average of 2 hours per day over the last six months, he/she would be entitled to up to 28 hours of sick pay.  If the worker has worked for the hiring entity for fewer than six months, the calculation is based on the average daily hours worked for the hiring entity.

Q.  How is Paid Sick Leave Calculated?

A.  The food sector worker is entitled to the highest rate of:

  1. the worker’s regular rate of pay for the last pay period;
  2. the state minimum wage; or
  3. the local minimum wage.

However, there is a cap.  A hiring entity is not required to pay more than $511 per day and $5,110 in the aggregate in sick pay to a food sector worker under this Executive Order.

Q.  How Long Is This Executive Order In Place?

A.  The Executive Order is effective immediately, and remains effective for the duration of any statewide stay-at-home order.  A food sector worker who starts paid sick leave when such order expires is entitled to the full amount of paid sick leave the Executive Order.

Q.  Is a Hiring Entity Required to Post a Notice?

A.  Yes, there is a posting requirement.  The poster is available here.  Hiring entities are required under Labor Code section 247 to display a poster in a conspicuous place that contains information about this sick leave.  If a hiring entity’s food sector workers do not frequent a workplace, the hiring entity may satisfy the notice requirement by disseminating notice through electronic means. 

Q.  What Are The Other Important Parts of the Executive Order?

The Executive Order also provides that food sector workers must be allowed to wash their hands every 30 minutes (and additionally if needed) if they work in a “Food Facility” defined by the Health and Safety Code.  This applies in any operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level.  The hand-washing provision will be enforced by local public health agencies.

Workers using or attempting to exercise their rights under this Executive Order are protected from retaliation under Labor Code section 246.5(c).  If a food sector worker is not provided with the required sick pay, or if the food sector worker believes that he/she is retaliated against regarding this Executive Order, the worker may file a claim or a report of a labor law violation with the Labor Commissioner’s Office, the state agency charged with enforcement.

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