California Governor Issues Paid Sick Leave to Food Sector Workers

Attorney Nicholas Kanter

Nicholas Kanter | Shareholder

April 20, 2020

Chrystal Ferber | Associate

April 20, 2020

Updated April 24, 2020

On April 16, 2020, Governor Gavin Newsom signed an industry-specific Order (Executive Order N-51-20), directing food sector “hiring entities” to provide up to two weeks of supplemental paid sick leave related to COVID-19.

The Order took immediate effect and will continue until the end of the COVID-19 state emergency. Workers on leave when the state emergency expires will be permitted to use any remaining supplemental sick time to which they would have otherwise been entitled.

Covered Entities/Eligible Workers

The Order applies to any “hiring entity” (e.g., sole proprietorship, corporation, partnership, limited liability company) with 500 or more employees within the United States.

An eligible individual must be an “essential worker” who leaves their residence to perform work for or through the hiring entity. Additionally, the individual must work in one of the following specified industries or occupations:

  • Canning, freezing, and preserving industry;
  • Industries handling products after harvest;
  • Industries preparing agricultural products for market, on the farm;
  • Agricultural occupation (e.g., harvesting an agricultural commodity, raising livestock, etc.);
  • A hiring entity that operates a food facility; or
  • Delivering food from a food facility.

Permissible Uses

Under the Order, a worker can take supplemental paid sick leave if the individual is unable to work because:

  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 healthcare provider to self-quarantine due to concerns related to COVID-19; or
  3. The hiring entity prohibits the worker from working due to health concerns related to the potential transmission of COVID-19.

Amount of Paid Sick Leave

A worker is entitled to 80 hours of supplemental paid sick leave if the hiring entity considers the individual full-time, or if the individual worked or was scheduled to work an average of 40 or more hours per week during the two weeks preceding the worker’s leave date. Those who are not full-time are entitled to an amount equal to the number of hours the individual is typically scheduled to work over two weeks.

Workers with a variable schedule will receive fourteen times the average number of hours they worked each day in the six months preceding the worker’s leave date. For those who have worked less than six months, leave must be calculated over the entire period the individual has worked for the entity.

Leave is compensated at a rate equal to the highest of:

  • A worker’s regular rate of pay for the last pay period;
  • California’s minimum wage; or
  • The worker’s local minimum wage.

Supplemental paid sick leave shall not exceed $511 per day and $5,110 in the aggregate.

Exemption

A hiring entity is exempt from the Order if it already provides a supplemental COVID-19 related benefit that would otherwise compensate the worker in an amount equal to or greater than an amount specified by the Order.

Posting Requirement

Hiring entities must post a model notice in a conspicuous place.  If the hiring entity’s employees do not frequent the workplace, the hiring entity may satisfy the notice requirement by sending the model notice to its employees by email or other electronic means.

Restrictions and Enforcement

Supplemental paid sick leave must be provided in addition to any existing California paid sick leave the worker would otherwise receive. Additionally, hiring entities may not require workers to use any other employer-provided leave before using supplemental paid sick leave.

The Order also requires that food sector employees be allowed to wash their hands every 30 minutes and additionally as needed.

The Order allows aggrieved workers to file a complaint with the Labor Commissioner.

Please reach out to a member of our Employment Practice Group if you have any questions and visit our COVID-19 Resource Page for more information on local and federal updates regarding COVID-19.

Nicholas Kanter and Chrystal Ferber are employment defense attorneys.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.

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