California Gov. Gavin Newsom issued a statewide Executive Order requiring large employers to provide up to 80 hours of Supplemental Paid Sick Leave (SPSL) for food sector workers and to permit extra handwashing breaks, effective immediately (April 16, 2020).

The Order is particularly noteworthy because the definition of a “Food Sector” includes any person who works for an employer that operates a food facility. The definition of “food facility” is incredibly broad. According to the Governor’s press release, he intends the Order to cover “farmworkers, agricultural workers, and those working in grocery stores and fast-food chains, and as delivery drivers.” While the Order extends well beyond these types of workers, it only applies to those deemed “essential” under the statewide stay-at-home order, and who must leave their home/residence to perform work.

Below is a summary of the law’s requirements.

Covered Employers

Any covered entity with 500 or more employees, including delivery and transportation employers with covered employees.

Covered Individuals

“Food Sector Workers” include those who:

• Work in specific industries or occupations (primarily agricultural and food processing), as defined by certain California Wage Orders; work for an employer who operates a food facility; or deliver food from a food facility. “Food facility” is defined by California Health and Safety Code section 113789(a)-(b) and covers a broad array of retail and food facilities.
• Are considered “Essential Critical Infrastructure Workers” exempt from Executive Order N-33-20 or any other statewide stay-at-home order.
• Must leave their home or residence to perform work.

Independent Contractors

The Order likely extends to independent contractors and gig economy workers.

Covered Absences

An eligible worker may use SPSL if s/he cannot report to work because the worker:

1. is subject to a federal, state, or local quarantine/isolation order related to COVID-19;
2. has been advised by a healthcare provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
3. is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Amount of SPSL

Full-time workers (those who were scheduled to work, on average, 40 hours for the two weeks preceding the leave request) receive 80 hours. Part-time workers with a “normal weekly schedule” must receive the total number of hours the worker is normally scheduled to work over two weeks. There is a special calculation that applies to workers with “variable” hours.

Relationship to Other Leave

SPSL must be provided in addition to any paid sick leave provided under California state law (Labor Code section 246), and any other paid time off benefits provided by the employer. Workers cannot be required to use any other form of paid leave (PTO, vacation) before using SPSL. However, the Order states that employers are not required to provide SPSL if, as of April 16, 2020, the employer provides a supplemental benefit (such as paid leave) that would be payable for the same reasons as SPSL and for an equal or greater rate of pay.

Waiting Period

None. Eligible workers may make immediate requests to use SPSL.

Rate of Pay

Eligible workers must receive a rate equal to the highest of the worker’s “regular rate of pay” in the last pay period preceding the leave request, or state/local minimum wage. Employers should assume “regular rate of pay” refers to the definition in California wage-and-hour law. However, payout is capped at $511/day and $5,110 in the aggregate, similar to the Families First Coronavirus Response Act (FFCRA).

Notices

By April 23, 2020, a model notice will be available. Employers must provide notice of the new law, and may do so electronically.

Expiration

The law is in effect during any statewide stay-at-home orders. However, a worker who begins leave before the expiration of such an order is entitled to continue taking leave, up to the full amount of SPSL they are entitled to use.

Handwashing Breaks

Workers in food facilities must be permitted to take a break to wash their hands every 30 minutes, and additionally as needed.