Blog: The California Workplace Advisor

On April 16, 2020, Governor Newsom signed Executive Order No. N-51-20 (the “Order”), providing paid sick leave to food sector workers in light of the COVID-19 pandemic. Like many city-specific sick leave ordinances arising in the shadow of the federal Families First Coronavirus Response Act, the Order applies to all employers within the state of California who employ 500 or more employees nationwide.

Below is key information California employers of food sector workers should know.

Only Food Sector Workers Are Covered by the Order:  Under the Order, a food sector worker is any person who:

1. Performs work in the food sector as either a farm worker, or anywhere else in the retail food supply chain, including pick-up, delivery, supply, packaging, retail, or preparation;
2. Performs work for the business outside the home; and
3. Are exempt as critical infrastructure workers from any statewide stay-at-home order.

Per the Department of Industrial Relations, examples of food sector workers include grocery store workers, store workers where food is sold, restaurant or fast food workers, warehouse workers, and workers who pick-up or deliver any food items.

When Food Sector Workers May Receive Paid Sick Leave:  A food sector worker is entitled to paid leave if they are unable to work for any of the following reasons:

1. The food sector worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. 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
3. The food sector worker is prohibited from working by their employer due to health concerns related to the potential transmission of COVID-19.

Paid sick leave is immediately available to food sector workers under the Order. Employers cannot require food sector workers to exhaust other paid leave before taking paid sick leave under the Order.

Amount of Paid Leave Food Sector Workers Are Entitled To:  Full-time food sector workers are entitled to 80 hours of paid sick leave. A food sector worker is considered full-time under the Order if (1) their employer considers them to work full-time; or (2) the food sector worker worked or was scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the food sector worker takes sick leave.

Part-time food sector workers with a normal weekly schedule are entitled to the same number of hours of paid sick leave as they work during a normal week.

Part-time food sector workers with variable schedules are entitled to 14 times the average number of hours they worked each day in the six months preceding the date the leave is taken. If a food sector worker has worked fewer than six months for the employer, the average number of hours should be calculated based on the employee’s entire period of employment.

Calculating Food Sector Workers’ Rate of Pay:  Any food sector worker that takes paid sick leave under the Order must be paid the greater of the following:

1. The food sector workers’ regular rate of pay for the last pay period before the leave is taken;
2. State minimum wage; or
3. Local minimum wage.

The total amount an employee can receives is capped at $511 per day, or $5,110 in the aggregate.

Employers’ Generous Leave Policies Taken Into Account:  If, as of April 16, 2020, an employer provides paid leave to food sector workers for the above COVID-19 related reasons, and the benefit provided is equal to or greater than the value of the sick leave provided for under the Order, the employer is not required to provide paid leave under the Order.

Effective Dates:  The Order became effective upon Governor Newsom’s signature on April 16, 2020, and will remain in effect during the pendency of any statewide stay-at-home order.

Notice Requirements and Enforcement Mechanisms:  The Labor Commissioner has drafted a model notice for employers to post within the workplace. If food sector workers do not frequent the workplace, an employer is permitted to disseminate the notice via email.

If an employer denies a food sector worker paid sick leave, or otherwise retaliates or discriminates against an employee for requesting paid sick leave, the affected food sector worker pay file a complaint with the Labor Commissioner.

Questions about COVID-19 and the workplace? Contact the Hirschfeld Kraemer lawyer who normally provides your legal advice, or you can reach out to Michelle Freeman in Hirschfeld Kraemer’s San Francisco office, mfreeman@hkemploymentlaw.com, (415) 835-9003.

For additional employer-focused information about COVID-19:
Click here to see the Hirschfeld Kraemer EMPLOYER’S GUIDE TO CORONAVIRUS