Executive Summary: On April 16, 2020, California Governor Gavin Newsom signed Executive Order N-51-20 (the “Order”) requiring employers in the Food Sector to (1) provide their employees with paid sick leave due to COVID-19 and (2) permit their employees working in a food facility to wash their hands at least once every 30 minutes. The purpose of the Order is to help “reduce the spread of COVID-19” by providing Food Sector employees incentive (in the form of paid sick days) to call off from work if they have or potentially have COVID-19. As Food Sector employees work directly with members of the public and the food supply, there is a heightened risk of transmittal if such employees are infected. This Order is effective immediately and shall remain effective during the pendency of California’s stay-at-home order.
SUPPLEMENTAL PAID SICK LEAVE DUE TO COVID-19
Below is a summary of the new requirements and benefits established by the Order.
The Order applies to private companies that have 500 or more employees within the United States. Those qualifying employers will be required to provide the sick leave as outlined below. Employers with less than 500 employees in the United States will not be impacted by the Order and will not be required to provide sick leave beyond what is already required under state or federal law.
The Order only applies to “Food Sector Workers.” Employees that qualify as eligible “Food Sector Workers” include individuals that 1) work in one of the qualifying industries or occupations (set forth below), 2) qualify as an Essential Critical Infrastructure Worker, and 3) leave their residence to perform work.
The qualifying industries or occupations include:
- Canning, Freezing, and Preserving Industry,
- Industries Handling Products After Harvest,
- Industries Preparing Agricultural Products for Market on the Farm,
- Agricultural Occupations,
- Food Facilities (any operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, regardless if food is consumed on or off the premises, including, but not limited to, cafeterias, commissaries, farmers’ markets, health care facilities, mobile food facilities, vending machines, farm stands, fishermen’s markets, home kitchen operations, and catering operations), or
- Delivery from a food facility.
Qualifying Reasons to Take Supplemental Paid Sick Leave.
The Order provides for Supplemental Paid Sick Leave for the following reasons:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- A healthcare provider advises the employee to self-quarantine or self-isolate due to concerns related to COVID-19; or
- The employer prohibits the employee from working due to health concerns related to the potential transmission of COVID-19.
Amount of Leave.
Eligible employees are entitled to the following amounts of leave under the Order:
- Full-time employees are entitled to 80 hours of paid sick leave.
- All other employees are entitled to:
- The total number of hours they are normally scheduled to work over two weeks; or
- If variable, 14 times the average number of hours the employee worked each day in the six months preceding the paid sick leave (or since the beginning of employment if less than six months).
Importantly, this leave is in addition to any other legally required paid sick leave. Employers may not require that the employees use any other paid or unpaid leave, paid time-off, or vacation time before or in lieu of using this paid sick leave.
Calculation of Pay.
The Supplemental Paid Sick Leave is paid out at the higher of 1) the employee’s regular rate of pay in the prior pay period, 2) the state minimum wage, or 3) any applicable local minimum wage. However, the daily amount is capped at $511 and $5,110 in the aggregate per employee.
Under the Order, no formal documentation is required. Rather, employers must provide the paid sick “for immediate use” leave upon either an oral or written request from the employee.
The Order does not apply to companies that have a preexisting paid leave policy in place that permits employees to take leave for the reasons authorized by the Order and provides an “equal or greater” amount of compensation than a worker would be entitled to under the Order.
Employees claiming a violation of the Order may file a complaint with the Labor Commissioner for reinstatement, any supplemental leave unlawfully withheld, penalties, and attorneys’ fees.
The Order requires the Labor Commissioner to create and make publicly available a model notice for employees. The Order appears to require (although not 100% clear) that all employers with over 500 employees, regardless of whether the employer is in the food industry, must post the notice or distribute the notice via email.
In addition to paid sick leave, the Order also permits employees working in a Food Facility to wash their hands every 30 minutes and additionally as needed. This requirement applies to all California employers, even those with less than 500 employees.
Of note, certain localities, including the City of Los Angeles and San Diego County have implemented orders providing greater worker protections.
It is recommended that employers with over 500 employees:
- Determine if the Supplemental Paid Sick Leave requirements impact their workers and, if so, determine if additional sick leave will be required in addition to existing policies.
- Monitor the Labor Commissioner’s website and post and/or email the Supplemental Paid Sick Leave Notice once it is made available.
It is recommended that all employees in California:
- Institute new clear, written policies permitting any and all employees working in a Food Facility to stop work to wash their hands at least every 30 minutes.
This Order will have a significant impact on employers in California. FordHarrison attorneys are available to assist you in implementing these changes and ensuring compliance with this and other COVID-19-related orders.
FordHarrison is closely monitoring the spread of Coronavirus and associated federal and state legislation and has implemented continuity plans, including the ability to work remotely in a technologically secure environment when necessary, to ensure continuity of our operations and uninterrupted service to our clients. Please see our dedicated Coronavirus Taskforce and Coronavirus – CARES Act pages for the latest FH Legal Alerts and webinars on Coronavirus and workplace-related provisions of the CARES Act, as well as links to governmental and industry-specific resources for employers to obtain additional information and guidance.
 IWC Wage Order No. 3 defines this industry as “any industry, business, or establishment operated for the purpose of canning soups, or of cooking, canning, curing, freezing, pickling, salting, bottling, preserving, or otherwise processing any fruits or vegetables, seafood, meat, poultry or rabbit product, when the purpose of such processing is the preservation of the product and includes all operations incidental thereto.”
 IWC Wage Order No. 8 defines this industry as “any industry, business, or establishment operated for the purpose of grading, sorting, cleaning, drying, cooling, icing, packing, dehydrating, cracking, shelling, candling, separating, slaughtering, picking, plucking, shucking, pasteurizing, fermenting, ripening, molding, or otherwise preparing any agricultural, horticultural, egg, poultry, meat, seafood, rabbit, or dairy product for distribution, and includes all the operations incidental thereto.”
 IWC Wage Order No. 13 defines this industry as “any operation performed in a permanently fixed structure or establishment on the farm or on a moving packing plant on the farm for the purpose of preparing agricultural, horticultural, egg, poultry, meat, seafood, rabbit, or dairy products for market when such operations are done on the premises owned or operated by the same employer who produced the products referred to herein and includes all operations incidental thereto.”