On April 16, 2020, California Governor Gavin Newsom signed Executive Order N-51-20 (“Order”) requiring employers in the food sector to:
- Provide employees with paid sick leave due to COVID-19, and
- Permit employees working in a food facility to wash their hands at least once every 30 minutes.
The type of workers included ranges from farmworkers to those in the retail food supply chain, including pick-up, delivery, supply, packaging, retail, or preparation. Eligible workers thus 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.
The purpose of the Order is to help “reduce the spread of COVID-19 and otherwise mitigate the effects of COVID-19” among food sector workers, thereby promoting public health and safety.
The Order is effective immediately, and remains effective during the pendency of any statewide stay-at-home orders.
Covered Businesses – Hiring Entities
The Order applies to all “Hiring Entities.” A Hiring Entity is a private entity, a delivery network company, or a transportation network company with 500 or more employees in the United States.
A Hiring Entity includes:
- Any private entity, including but not limited to any kind of corporation, partnership, limited liability company, limited liability partnership, or any other kind of business enterprise.
- A delivery network company, which is a business entity that maintains an internet website or mobile application used to facilitate delivery services for the sale of local products from a local merchant, not to exceed 75 miles of travel.
- A transportation network company that provides prearranged transportation services for compensation using an online-enabled application or platform to connect passengers with drivers using a personal vehicle.
Eligible Employees – Food Sector Workers
The Order only applies to “Food Sector Workers.” A Food Sector Worker is any person who:
- Satisfies any one of the following criteria:
- Works in one of the following industries or occupations: (1) canning, freezing, and preserving industry, as defined in IWC Order 3-2001 2(B); (2) industry handling products after harvest, as defined in IWC Order 8-2001 § 2(H); (3) industries preparing agricultural products for market, on the farm, as defined in IWC Order 13-2001 § 2(H); or (4) agricultural occupations, as defined in IWC Order 14-2001 § 2(D); or
- Works for a Hiring Entity that operates a food facility; or
- Delivers food from a food facility, for or through a Hiring Entity.
- Is exempt, as an Essential Critical Infrastructure Worker, from the requirements imposed by Executive Order N-33-20 or any other statewide stay-at-home order; and
- Leaves the person’s home or other place of residence to perform work for or through the person’s Hiring Entity.
Eligibility For Supplemental Paid Sick Leave
Covered businesses must provide COVID-19 Supplemental Paid Sick Leave to each Food Sector Worker for any 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;
- The Food Sector Worker is prohibited from working by the Food Sector Worker’s Hiring Entity due to health concerns related to the potential transmission of COVID-19.
Amount Of Supplemental Paid Sick Leave
In addition to any paid sick leave that may be available to Food Sector Workers under Labor Code § 246, Food Sector Workers are eligible for:
- Full-time Food Sector Workers or those who worked or are scheduled to work an average of at least 40 hours per week in the two weeks before leave is taken are eligible for 80 hours of COVID-19 Supplemental Paid Sick Leave.
- If a Food Sector Worker has a normal weekly schedule, the Food Sector Worker is eligible for the total number of hours he/she is normally scheduled to work over two weeks.
- If a Food Sector Worker has a variable number of hours, the Food Sector Worker is eligible for fourteen times the average number of hours he/she worked each day in the six months preceding the date of COVID-19 Supplemental Paid Sick Leave.
- If a Food Sector Worker has worked less than six months, the amount of COVID-19 Supplemental Paid Sick Leave he/she is entitled to is based on the entire period he/she worked for the Hiring Entity.
Covered businesses are not required to provide a Food Sector Worker more than the total number of hours of COVID-19 Supplemental Paid Sick Leave he/she is entitled to.
How COVID-19 Supplemental Paid Sick Leave Is Compensated
Each hour of COVID-19 Supplemental Paid Sick Leave shall be compensated at a rate equal to the highest of:
- The Food Sector Worker’s regular rate of pay for his/her last pay period;
- The State minimum wage; or
- The local minimum wage to which the Food Sector Worker is entitled.
Notwithstanding the foregoing, covered businesses are not required to pay more than $511 per day and $5,110 in the aggregate.
Use Of Other Leave
Covered businesses may not require a Food Sector Worker to use any other paid or unpaid leave, paid time-off, or vacation time provided by the Hiring Entity to the Food Sector Worker before he/she uses COVID-19 Supplemental Paid Sick Leave.
What If A Business Already Provides Supplemental Paid Sick Leave?
A covered business is not required to provide COVID-19 Supplemental Paid Sick Leave if it already provides paid benefits that compensate workers for the same purposes as the Order, and is provided in an amount equal to or greater than the amount provided under the Order.
Mandatory Hand Washing Every 30 Minutes
The Order also requires all employees working in a food facility be permitted to wash their hands every 30 minutes and additionally as needed.
Notice Requirements — Required Poster
Covered businesses must display this poster containing information regarding Supplemental Paid Sick Leave where workers can easily read it. However, if Food Sector Workers do not frequent a physical workplace, the notice may be disseminated electronically.
Additional Local COVID-19 Ordinances Re Sick Leave
On April 17, 2020, San Francisco Mayor London Breed signed the Public Health Emergency Leave Ordinance (PHELO), which became effective immediately. The PHELO requires businesses with 500 or more employees worldwide to provide up to 80 hours of Public Health Emergency Leave.
An eligible employee may use Public Health Emergency Leave to the extent that the employee is unable to work due to any of the following:
- The employee is subject to an individual or general federal, state, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine;
- The employee is experiencing symptoms associated with COVID-19 and seeking a medical diagnosis;
- The employee is caring for a family member who is subject to a COVID-19 quarantine or isolation order, has been advised by a health care provider to self-quarantine, or is experiencing symptoms associated with COVID-19 and seeking a medical diagnosis;
- The employee is caring for a family member if the school or place of care of the family member has been closed, or the care provider of such family member is unavailable, due to the Public Health Emergency; or
- The employee is experiencing any other substantially similar condition specified by the Local Health Officer, or under Section 5102(a)(6) of the Act, by the United States Secretary of Health and Human Services.
As reported previously, on April 7, 2020, Los Angeles Mayor Garcetti issued a Public Order that will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period. The Public Order applies to employers with: (1) 500 or more employees within the City of Los Angeles, or (2) 2,000 or more employees within the United States.
A covered employer is required to provide Supplemental Paid Sick Leave upon the oral or written request of an employee if:
- The employee takes time off due to COVID-19 infection or because a public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
- The employee takes time off because the employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
- The employee takes time off because the employee needs to care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine; or
- The employee takes time off because the employee needs to provide care for a family member whose senior care provider or whose school or child care provider caring for a child under the age of 18 temporarily ceases operations in response to a public health or other public official’s recommendation. This provision is only applicable to an employee who is unable to secure a reasonable alternative caregiver.
Stay On The Lookout For This Not-Yet Enacted Los Angeles Right Of Recall Legislation
In line with increasing state and local regulations, the Los Angeles city council drafted an ordinance that would protect jobs of hospitality and property service employees who were laid off during the coronavirus pandemic. If passed, the ordinance would require employers to offer their laid-off employees all available job positions for which they are qualified, otherwise known as the right of recall. While Mayor Garcetti has previously expressed public support for the ordinance, the ordinance is not effective until signed. Stay tuned. . .