Locke Lord QuickStudy: California Governor Gavin Newsom Signs Executive Order Requiring Supplemental Sick Leave Benefits for Food Sector Workers Impacted By COVID-19

Locke Lord LLP
April 17, 2020

On April 16, 2020, California Governor Gavin Newsom, signed an Executive Order (the “Order”) requiring large employers (500+ employees) of “Food Sector Workers”—such as grocery store workers, farmworkers, and fast food chain workers—to provide up to 80 hours of Supplemental Paid Sick Leave for qualifying reasons related to the COVID-19 pandemic. In some aspects, the Order is similar to less focused ordinances passed by Los Angeles, San Jose, and San Francisco over the last couple of weeks. For in-depth discussions regarding the Los Angeles Ordinance, and the San Jose and San Francisco Ordinances, please click here and here, respectively. The notable difference, however, is the Order’s focus on the food sector industry.

The intent of the Order is to provide Supplemental Paid Sick Leave to Food Sector Workers in California ineligible to receive benefits under the federal Families First Coronavirus Response Act (“FFCRA”). For an in-depth discussion regarding the FFCRA, click here. In addition to providing Supplemental Paid Sick Leave, the Order sets out health and safety standards to increase worker and customer protection by permitting workers at food facilities to wash their hands every 30 minutes, or as needed.

The Order, effective immediately, will remain in effect during the pendency of any statewide stay-at-home order issued by the State Public Health Officer.

Covered Employers

The Order applies to a “Hiring Entity” that has 500 or more employees in the United States. “Hiring Entity” is defined as “a private sole proprietorship or any kind of private entity whatsoever—including, but not limited to, any kind of corporation, partnership, limited liability company, limited liability partnership, or any other kind of business enterprise, and specifically including any Delivery Network Company (as defined in Revenue and Taxation Code section 6041.5(b)) and any Transportation Network Company (as defined Public Utilities Code section 5431 (c)).”

To determine the number of employees that the “Hiring Entity” employs, the Order incorporates the requirements under section 826.40(a)(1)-(2) of the FFCRA. Like the FFCRA, the number of employees includes employees on leave, employees of temporary placement agencies who are jointly employed under the Fair Labor Standards Act (“FLSA”), and day laborers. Notably, length of time employed is irrelevant.

A corporation is considered to be a single employer and each of its employees count toward the 500-employee threshold. A corporation with an ownership interest in another corporation, however, is considered a separate employer unless the two corporations either (a) qualify as joint employers under the FLSA, or (b) meet the integrated employer test under the federal Family and Medical Leave Act.

Eligible Employees

The Order applies to any “Food Sector Worker.” To qualify as a “Food Sector Worker”, a worker must satisfy one of the following criteria:

  1. He or she works in one of the industries or occupations defined in the Industrial Welfare Commission’s (“IWC”) Wage Order 3-2001 (“Canning, Freezing, and Preserving Industry”); IWC Wage Order § 8-2001 § 2(H) (“Industries Handling Products After Harvest”); IWC Wage Order 13-2001 § 2(H) (“Industries Preparing Agricultural Products for Market, on the Farm”); or IWC Wage Order 14-2001 § 2(D) (“Agricultural Occupations”);

  2. He or she works for a “Hiring Entity” that operates a food facility as defined in Health and Safety Code section 113789(a)-(b), including, but not limited to: food facilities that store, prepare, package, serve, vend, or otherwise provide food for human consumption at the retail level, as well as permanent and nonpermanent food facilities, such as public and private school cafeterias, restricted food service facilities and licensed health care facilities; or

  3. He or she delivers food from a food facility, as defined in Health and Safety Code section 113789(a)-(b), for or through a Hiring Entity.

The Food Sector Worker is exempt from the Order if he or she is considered an “Essential Critical Infrastructure Worker as defined by Executive Order N-33-20 or any other statewide stay-at-home order.”

Qualifying Reasons for Supplemental Leave

A Hiring Entity is required immediately to provide Supplemental Paid Sick Leave to a Food Sector Worker upon an oral or a written request indicating if the “Food Service Worker” is:

  1. Subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

  2. Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or

  3. 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 Leave Available

A Food Sector Worker is entitled to up to 80 hours of Supplemental Paid Sick Leave if either of the following criteria are met:

  1. The Hiring Entity consider the Food Sector Worker to work “full-time”; or

  2. The Food Sector Worker worked or was scheduled to work for the Hiring Entity, on average, at least 40 hours per week in the two weeks preceding the date the Food Sector Worker took COVID-19 Supplemental Paid Sick leave.

A Food Sector Worker who does not satisfy the above criteria is nonetheless entitled to leave:

  1. If the Food Sector Worker has a normal weekly schedule, the total number of hours the Food Sector Worker is normally scheduled to work for or through a Hiring Entity over two weeks; or

  2. If the Food Sector Worker works a variable number of hours, fourteen times the average number of hours the Food Sector Worker worked each day for or through the Hiring Entity in the six months preceding the date the Food Sector Worker took COVID-19 Supplemental Paid Sick Leave. If the Food Sector Worker has worked for the Hiring Entity fewer than six months, this calculation shall instead be made over the entire period the Food Sector Worker has worked for the Hiring Entity.

Moreover, a Hiring Entity is not required to provide a Food Sector Worker more than the total number of hours of COVID-19 Supplemental Sick Leave to which the worker is entitled. The Order clearly provides that the total number of hours of leave is in addition to any paid sick leave available under California Labor Code section 246.

Calculating Payments

Similar to the Los Angeles, San Jose, and San Francisco ordinances, the amount of Supplemental Paid Sick Leave under the Order is capped at $511 per day and $5,110 ‎in the aggregate per Food Sector Worker. Each hour of leave is compensated at a rate equal to the highest of:

  1. The Food Sector Worker’s regular rate of pay for the Food Sector Worker’s last pay period;

  2. The State minimum wage; or

  3. The local minimum wage to which the Food Sector Worker is entitled.

Furthermore, a Hiring Entity cannot 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 the Food Sector Worker uses COVID-19 Supplemental Paid Sick Leave, or in lieu of COVID-19 Supplemental Paid Sick Leave.”

NOTE: Because of the ever-changing COVID-19 legal environment, employers should consult with counsel for the latest developments and updated guidance on these topics.

Visit our COVID-19 Resource Center often for up-to-date information to help you stay informed of the legal issues related to COVID-19.