The order also establishes standards for handwashing to mitigate and prevent the spread of COVID-19. 

On April 16, 2020, California Governor Gavin Newsom signed Executive Order N-51-20, which requires companies with 500 or more employees to provide supplemental paid sick leave benefits to food service industry workers. The order covers workers on farms, grocery stores, restaurants and food delivery services who have continued to work on-site during the COVID-19 pandemic. Notably, the order applies to employees and companies who are not covered by the federal Families First Coronavirus Response Act (FFCRA). The order is effective immediately.

Under the new order, covered employees may use up to two weeks of COVID-19 Supplemental Paid Sick Leave if they have contracted COVID-19, been exposed to the virus or are subject to federal, state or local quarantine or isolation orders related to COVID-19. The order also establishes standards for handwashing to mitigate and prevent the spread of COVID-19. The order follows state and local proclamations of a public emergency, increasingly robust shelter-in-place orders affecting businesses and individuals, and the enactment of local paid sick leave ordinances in several California cities in response to the spread of COVID-19. We have analyzed the FFCRA and the Local Supplemental Paid Sick Leave Ordinances in recent Alerts.

Covered Food Service Workers and Businesses

The order covers only individuals working in one of the recognized food sector industries in California. To be considered a “food sector worker” and entitled to COVID-19 Supplemental Paid Sick Leave, the workers must satisfy one of the following criteria:

1. 1. They work for industries covered by California Industrial Wage Commission Wage Orders 3, 8, 13 and 14 applicable to canning, freezing or preserving facilities; industries handling products after harvest; meatpacking or similar facilities; or agriculture and livestock operations; or
   2. They work for a business that operates a food facility, such as a grocery store, restaurant, commissary, canteen, catering operation, microenterprise home kitchen operation, food truck or vending machine company; or
   3. They deliver food or meals, either directly or for another company, including gig workers who drive for services like DoorDash, GrubHub and Postmates.

In addition, the worker must be included as an “Essential Critical Infrastructure Worker” who is exempt from California’s stay-at-home orders and who must leave his or her home to perform their work.

Additionally, the order applies to all private businesses, delivery network companies and transportation network companies[1] with 500 or more workers nationwide, who must provide COVID-19 Supplemental Paid Sick Leave to their eligible food sector workers who deliver food or meals, even though such workers are typically classified as independent contractors.

Permissible Uses and Leave Amounts

Essential food sector workers that are unable to work may use COVID-19 Supplemental Paid Sick Leave for the following reasons:

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

Unlike the FFCRA, the order does not provide paid leave due to an inability to work in order to care for another individual and/or family member, or to care for a child whose school is closed or childcare provider is unavailable due to circumstances that are related to COVID-19.

Full-time workers, or workers that on average worked at least 40 hours per week in the two weeks preceding the commencement of the paid leave, are entitled to at least 80 hours of paid sick leave.

The amount of paid sick leave for part-time workers is calculated based on their usual hours worked during a two-week period. If the worker has variable work hours, the amount of leave is 14 times the average number of daily hours worked in the six-month period immediately preceding the date that the paid sick leave commences, or, if the worker has worked for fewer than six months, the duration of their employment. Workers must be paid the greater of their regular rate of pay from their prior pay period, or applicable state/local minimum wage, up to the statutory caps ($511 per day and $5,110 in the aggregate per worker).[2]

COVID-19 Supplemental Paid Sick Leave is in addition to any paid sick leave that workers already have available under state or local law. Employers cannot require the use of state or local paid sick leave, paid time off, or vacation until the COVID-19 Supplemental Paid Sick Leave is exhausted. However, food sector workers who have already been provided with supplemental benefits (such as extra paid sick leave) consistent with or greater than what the order provides are not entitled to additional leave.

Enforcement

The California Labor Commissioner is authorized to enforce the provisions of COVID-19 Supplemental Paid Sick Leave consistent with existing state and local paid sick leave laws. Workers claiming violations of their rights under COVID-19 Supplemental Paid Sick Leave may file a complaint with the Labor Commissioner, and may seek remedies provided by state or local laws, including the remedies available to redress any unlawful business practice under the Unfair Competition Law (Business and Professions Code sections 17200 et seq.).

Notice Requirements

The Labor Commissioner will publish a model notice for posting no later than April 23, 2020. Notice must be posted in the workplace, or if workers do not frequent a workplace, notice may be provided through electronic means, such as by email.

Health and Safety Standards

In addition to the COVID-19 Supplemental Paid Sick Leave requirements, the order expands the handwashing requirements under California's Retail Food Code to instruct food facilities to permit their workers to wash their hands every 30 minutes and additionally on an as-needed basis to mitigate and prevent the spread of COVID-19.

Like other COVID-19 paid leave laws, the provisions in the order are scheduled to sunset when statewide stay-at-home orders issued by the State Public Health Officer expire.

What This Means for Employers

The order reflects the first statewide measure to provide immediate supplemental paid sick leave benefits to individuals who work for large employers, and thus, are not covered by the FFCRA. Food industry businesses that have 500 or more workers should expect an influx of paid sick leave requests from food sector workers in California.

Employers should carefully review the order and existing paid sick laws and local supplemental paid sick leave ordinances, as well as the FFCRA and the Department of Labor’s regulations, to ensure that policies are in place for compliance, and that management and human resources personnel have been trained on the new leave requirements so that leave is exhausted in the correct order. Employers are encouraged to review the requirements with an employment attorney and to stay tuned for further developments in all of the localities where they have operations.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For Further Information

If you have any questions about this Alert, please contact Eve I. Klein, James S. Brown, Brooke B. Tabshouri, Anjuli M. Cargain, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.