Hunton Employment & Labor Perspectives

On April 16, 2020, Governor Gavin Newsom issued Executive Order N-51-20, which requires California employers in the food sector industry to provide certain workers affected by the COVID-19 pandemic with up to 80 hours of supplemental paid sick leave.

Which Employers Are Covered By The Executive Order?

While the federal Families First Coronavirus Response Act (FFCRA) authorizes similar paid sick leave benefits, the federal requirements apply only to employers with fewer than 500 employees. The California Executive Order expands the requirement to provide COVID-19-related paid sick leave to employers in the food sector with 500+ employees. All employees in the United States count towards the 500-employee threshold.

Which Employees Are Eligible For Supplemental Paid Sick Leave?

The executive order is meant to cover certain workers in the food sector, including farmworkers, agricultural workers, delivery drivers, and those working in grocery stores and fast food chains. To qualify as a “Food Sector Worker” eligible for supplemental paid sick leave, the individual must meet three specific requirements:

• the individual must satisfy any of the below criteria:
  • The person works in the canning, freezing, and preserving industry; industries handling products after harvest; industries preparing agricultural products for market on the farm; or in an agricultural occupation.
  • The person works for a covered employer that operates a food facility.
  • The person delivers food from a food facility for or through a covered employer.
• the individual must be exempt as an Essential Critical Infrastructure Worker from the requirements imposed by California’s shelter-at-home order. For further discussion on essential workers in California, please see our previous posts found here and here.
• the individual must leave their home or other place of residence to perform work for or through a covered employer.

What Is The Scope of The Supplemental Paid Sick Leave Obligation?

Supplemental paid sick leave must be made available for immediate use upon the oral or written request of a qualifying Food Sector Worker. An employer is only required to provide paid sick leave if the individual is “unable to work” due to any one of the following reasons:

• The Food Sector Worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
• The Food Sector Worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
• The Food Sector Worker is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

The total number of hours of supplemental paid leave to which a Food Sector Worker is entitled will depend on their full-time/part-time status. Each hour must be compensated at a rate equal to the highest of the Food Sector Worker’s regular rate of pay for their last pay period, the state minimum wage, or the local minimum wage. An employer’s maximum obligation cannot surpass $511/day and $5,110 in total.

The requirement to provide supplemental paid sick leave pursuant to the executive order shall be effective during the pendency of any statewide stay-at-home order issued in California. If any such order expires, a Food Sector Worker who was taking leave when the order expired may still take the full amount of leave to which they would have otherwise been entitled.

Employers also are required to provide notice of this sick leave entitlement. By April 23, 2020, the Labor Commissioner is required to make a model notice available. If employees do not frequent a workplace, employers may satisfy their notice requirements by sending the notice through electronic means, such as by email.

Can An Employer Offset Their Obligation Using Other Benefits?

Supplemental paid sick leave under the executive order is provided in addition to paid sick leave accrued by employees under state law pursuant to California Labor Code section 246.

However, an employer may not be required to provide supplemental paid sick leave in addition to certain other supplemental benefits provided as of April 16, 2020. To offset the requirements under the executive order, these supplemental benefits (1) must be payable for the same reasons as those provided under the executive order, and (2) must compensate the Food Sector Worker in an amount equal to or greater than the amount provided under the executive order.

Employers should consult counsel to determine whether they can satisfy their obligations under the executive order by providing other supplemental benefits.

What Are The Penalties If An Employer Does Not Comply With The Executive Order?

In addition to remedies provided under state law (including, but not limited to, remedies available to redress any unlawful business practice under the Unfair Competition Law), the Labor Commissioner shall enforce the provision of supplemental paid sick leave.