On April 16, 2020, California Governor Gavin Newsom, signed Executive Order N-51-20 (the “Order”) requiring large employers (500+ employees nationwide, not including independent contractors) of food sector workers to provide up to 80 hours of Supplemental Paid Sick Leave for qualifying reasons related to the COVID-19 pandemic. In some aspects, the Order is similar to broader ordinances passed by Los Angeles, San Jose, and San Francisco over the last couple of weeks that apply to all types of large employers and not just those in the food sector.
The intent of the Order is to provide Supplemental Paid Sick Leave to food sector workers in California ineligible to receive benefits under the federal Families First Coronavirus Response Act (“FFCRA”). In addition to providing Supplemental Paid Sick Leave, the Order sets out health and safety standards to increase worker and customer protection by permitting workers at food facilities to wash their hands every 30 minutes, or as needed.
The Order, effective immediately, will remain in effect during the pendency of any statewide stay-at-home order issued by the State Public Health Officer.
Here are the key aspects of the Order:
Covered Entities – For purposes of determining the number of employees for the hiring entity, employees are counted the same way as in the FFCRA, 29 C.F.R. § 826.40. Excluded from the Order are hiring entities that provide paid benefits (e.g., paid time off) that will compensate workers for the same purposes as the Order and at a level at least equal to the benefits provided under the Order as of April 16, 2020. The leave provided by the Order is in addition to any paid sick leave available under California Labor Code Section 246.
Private Employers Only – Public employers are not subject to the Order.
Covered Workers – The Order applies 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. Both full and part-time workers are covered under the Order. The food sector workers covered under the Order ranges from farmworkers to those workers who work in the retail food supply chain, including pick-up, delivery, supply, packaging, retail, or preparation. Eligible workers include grocery workers, restaurant or fast-food workers, workers at warehouses where food is stored, and workers who pick-up or deliver any food items.
What Benefits Must Be Provided – The food sector worker is entitled to Supplemental Paid Sick Leave at an hourly rate equal to the highest of:
Monetary Caps – The amount of Supplemental Paid Sick Leave under the Order is capped at $511 per day and $5,110 in the aggregate per food sector worker.
No Tax Credits/Reimbursements – Unlike the Emergency Paid Sick Leave under the FFCRA, there are no tax credits or other government reimbursements available for the sick leave required by the Order.
When Benefits Be Provided – A food sector worker is entitled to Supplemental Paid Sick Leave if the worker cannot work because:
If a stay home order or medical professional recommends that a hiring entity require the food sector worker to stay home, then a worker is eligible for Supplemental Paid Sick Leave under the Order.
A hiring entity must provide Supplemental Paid Sick Leave to a food sector worker immediately upon the oral or written request of the worker.
The Order remains effective during any statewide stay-at-home order. A food sector worker taking Supplemental Paid Sick Leave when a statewide stay-at-home order expires can take the full leave.
Notice Requirements – Hiring entities must display a poster in a conspicuous place that contains information about Supplemental Paid Sick Leave under the Order. If a hiring entity’s food sector workers do not frequent a workplace, the hiring entity may satisfy the notice requirement by disseminating notice by electronic means.
Should you have any questions about this order or any of the local jurisdictions orders regarding supplemental paid sick leave, please feel free to contact us. We will continue to monitor for updates and keep you informed.