California Mandates Supplemental Paid Sick Leave for Food Sector Workers

Earlier this month, California Governor Gavin Newsom signed Executive Order N-51-20, mandating that certain “hiring entities” provide supplemental paid sick leave for food sector workers. The executive order (EO) acknowledges that workers who help grow and provide food, work in food facilities and deliver food are essential critical infrastructure workers who continue to work outside their homes during the COVID-19 pandemic. In an effort to prevent food sector workers from having to go to work when they are sick, which increases health and safety risks, the EO mandates supplemental paid sick leave for certain COVID-19-related reasons. Here’s what hiring entities need to know about the EO.

Which “hiring entities” have to provide supplemental paid sick leave?

The EO applies to private hiring entities with 500 or more employees in the United States, including “any Delivery Network Company (as defined in Revenue and Taxation Code section 6041.5(b)) and any Transportation Network Company (as defined in Public Utilities Code section 5431(c)).”

Who is eligible to receive supplemental paid sick leave?

Food sector workers, defined as:

(1) a person who works in the industries or occupations enumerated in Industrial Welfare Commission Wage Orders:

• 3-2001 § 2(B) [any industry, business, or establishment operated for the purpose of canning soups, or of cooking, canning, curing, freezing, pickling, salting, bottling, preserving, or otherwise processing any fruits or vegetables, seafood, meat, poultry or rabbit product]
• 8-2001 § 2(H) [any industry, business, or establishment operated for the purpose of grading, sorting, cleaning, drying, cooling, icing, packing, dehydrating, cracking, shelling, candling, separating, slaughtering, picking, plucking, shucking, pasteurizing, fermenting, ripening, molding, or otherwise preparing any agricultural, horticultural, egg, poultry, meat, seafood, rabbit, or dairy product for distribution]
• 13-2011 § 2(H) [any operation performed in a permanently fixed structure or establishment on the farm or on a moving packing plant on the farm for the purpose of preparing agricultural, horticultural, egg, poultry, meat, seafood, rabbit, or dairy products for market when such operations are done on the premises owned or operated by the same employer who produced the products] or
• 14-2001 § 2(D) [agricultural occupations]

(2) a person who works for a hiring entity that operates a food facility per Health and Safety Code § 113789(a-b); or

(3) the person delivers food from a food facility for or through a hiring entity.

To be eligible for leave under the EO, the food sector worker must also be deemed an Essential Critical Infrastructure worker and leave their home to perform work for or through the hiring entity. It therefore does not apply if the food sector worker is able to telework. Notably, this supplemental paid sick leave may also cover independent contractors of a hiring entity if the hiring entity and the food sector worker meet the other requirements.

What are the qualifying reasons?

Under the EO, a food sector worker is entitled to supplemental paid sick leave if:

(1)  the food sector worker is subject to a federal, state or local quarantine or isolation order related to coronavirus;

(2) the food sector worker is advised by a health care provider to self-quarantine or self-isolate due to coronavirus concerns; or

(3) the food sector worker is prohibited from working by the hiring entity due to health concerns related to the potential transmission of coronavirus.

How much leave is required?

Full-time workers (or those who have worked on average 40 hours per week in the two weeks preceding the date the worker took supplemental leave) are entitled to 80 hours of supplemental paid sick leave.

Part-time workers who work a set schedule are entitled to the total number of hours the food sector worker is scheduled to work over two weeks.

If the worker works a variable number of hours, they are entitled to 14 times the average number of hours they worked each day for or through the hiring entity in the 6 months preceding the date the worker took supplemental leave.

At what rate of pay does the leave have to be paid?

The pay rate is the highest of:

(1) the regular pay rate for the last pay period;

(2) the state minimum wage rate; or

(3) the applicable local minimum wage.

Supplemental paid sick leave is capped at $511 per day and $5,110 in the aggregate per worker.

Is this on top of other leave the hiring entity provides?

Yes, the EO requires hiring entities to provide supplemental paid sick leave, in addition to what the hiring entity generally provides, to food sector workers. The hiring entity may not require that the worker take any other leave or benefit, whether paid or unpaid, prior to or instead of this supplemental paid sick leave.

Are there exceptions?

A hiring entity is not required to provide supplemental paid sick leave if, as of April 1, 2020, the hiring entity provides workers with a supplemental benefit, such as paid leave, that can be used for any COVID-19 reason. The paid leave must be equal to or great than the amount the worker would be entitled to under the EO.

How is it enforced?

The primary vehicle for enforcement is via the Labor Commissioner.