Gov. Newsom expands leave to food sector workers.

On April 16, Gov. Gavin Newson (D) issued Executive Order N-51-20, expanding the availability of paid sick leave related to COVID-19 for food sector workers who are employed in the private sector. The COVID-19 Supplemental Paid Sick Leave is in addition to any paid sick leave that the employee may be entitled to under California paid sick leave laws. See Cal. Lab. Code § 246.

The Order is intended to expand access to supplemental paid sick leave to workers that may not have been included in the federal Families First Coronavirus Response Act. Employers must provide a maximum of 80 hours of additional paid sick leave to qualifying full-time employees and varying amounts to qualifying employees who are not considered full-time. Note that there are other local jurisdictions, such as the City of Los Angeles, that have enacted ordinances in an effort to close gaps created by the FFCRA and that may already apply.

Who is covered?

Any private sole proprietorship or any kind of private entity that has 500 or more employees in the United States (“Hiring Entity”) that employs a “Food Sector Worker,” which is defined as any person who

• Works in the canning, freezing, and preserving industry; industries handling products after harvest; industries preparing agricultural products for market, on the farm; is employed in an agricultural occupation; or
• Works for an employer that operates as a food facility as defined in Health and Safety Code Section 113789(a)-(b); or
• Delivers food from a food facility or through an employer.

In addition, the person must be an "Essential Infrastructure Worker" based on the stay-at-home orders and must leave his or her home to perform work to be eligible for COVID-19 Supplemental Paid Sick Leave.

Employers that, as of April 16, already provide supplemental paid leave for COVID-19-related reasons in an amount equal to or greater than the COVID-19 Supplemental Paid Sick Leave are not required to provide additional paid sick leave, as they are already in compliance with the Order.

How much supplemental leave must a Hiring Entity provide to a Food Sector Worker?

Full-time employees, as defined under the Order, are eligible for up to 80 hours of COVID-19 Supplemental Paid Sick Leave.

Employees who do not satisfy the “full-time” requirements are eligible for a lesser amount of COVID-19 Supplemental Paid Sick Leave. Employees with a normal weekly schedule are entitled to a total number of paid sick leave hours that is equal to their normally scheduled work over two weeks. That is, if an employee normally works 15 hours a week, then the employee entitled to a total of 30 hours of COVID-19 paid sick leave.

Employees who work variable schedules are entitled to 14 times the average number of hours they worked each day in the six months before their request for leave. For example, if an employee worked an average of 4 hours each day over the past six months, then the employee would be entitled to 56 hours of COVID-19 Supplemental Paid Sick Leave. The calculation for employees who have worked for less than six months is based on the entire period of time worked for the employer.

How can a Food Sector Worker request COVID-19 Supplemental Paid Sick Leave?

An employer must make COVID-19 Supplemental Paid Sick Leave available immediately after receiving an oral or written request from the employee.

Note that employers cannot require employees to exhaust or use any other kind of paid or unpaid leave, including vacation time, before the employee uses COVID-19 paid sick leave.

How much does a Hiring Entity have to pay the Food Sector Worker who takes COVID-19 Supplemental Paid Sick Leave?

Employers must pay COVID-19 Supplemental Paid Sick Leave at the employee’s regular rate of pay, or the state minimum wage, or the applicable local minimum wage, whichever is higher, up to a cap of $511 per day or a total amount of $5,110.

How is the Order being enforced?

The Labor Commissioner will enforce the Order, consistent with its enforcement of paid sick days under California Labor Code Sections 246(n), 246.5(b)-(c), 247, 247.5, 248.5, and 249.

Are there any notices that a Hiring Entity must provide?

The Labor Commissioner has made model notices for purposes of this Order to satisfy the notice requirements of Labor Code § 247. Employers may distribute the notice electronically only if workers do not frequent the workplace.

For how long does a Hiring Entity have to provide COVID-19 Supplemental Paid Sick Leave?

Until the end of the statewide stay-at-home orders. Workers on COVID-19 Supplemental Paid Sick Leave at the time that the Order expires will be allowed to take the full amount of COVID-19 Supplemental Paid Sick Leave that they would have been entitled to under the Order.

Is there anything else the Hiring Entity should know about this Order?

The Order also requires that employers permit employees working in a food facility to wash their hands every 30 minutes and additionally as needed. This directive is to be enforced under applicable provisions of the Retail Food Code.