California’s COVID-19 Supplemental Paid Sick Leave Order: What Employers Need to Know

By Anthony Zaller on April 22, 2020

Posted in California Legislation Update, Coronavirus, Wage & Hour Law

Governor Newsom

On April 16, 2020, Governor Gavin Newsom issued Executive Order N-51-20, which provides new paid sick leave to certain food service workers. Citing a need to fill a “gap” left by the federal Families First Coronavirus Response Act, which applies solely to employers with fewer than 500 employees, this new Executive Order provides up to 80 hours of “COVID-19 Supplemental Paid Sick Leave” to defined food sector workers.

(Zaller Law Group is hosting a free webinar on Friday, April 24, 2020, to discuss this new Executive Order and answer your questions. Join us for Understanding California’s New Paid Sick Leave Requirements For Food Sector Employees.)

Here is what you need to know.

What employers are covered?

Executive Order N-51-20 applies to employers with 500 or more employees in the United States, including full-time and part-time workers but not including independent contractors. Employees on leave of any kind are counted, but employees furloughed or laid off are not counted unless and until they are reemployed.

The Executive Order expressly applies to any “Delivery Network Company” (companies that use a website or mobile app to enable local delivery of products/food from third-party merchants; think Postmates or GrubHub) and any “Transportation Network Company” (companies that provide transportation services using online apps/platforms that connect passengers with drivers using a personal vehicle; think Uber or Lyft) that employs 500 or more employees.

As with the FFCRA and FMLA, common employees of joint or integrated employers must be counted together.

There is one exception: if, as of April 16, 2020, the employer already provides a “supplemental benefit” such as paid leave that provides the same or greater benefit provided by this Executive Order, then the employer does not have to provide the COVID-19 Supplemental Paid Sick Leave.

What employees are entitled to Supplemental Paid Sick Leave?

The Executive Order applies to “Food Sector Workers,” which it defines as any person who satisfies one of the following criteria:

The person works in an industry or occupation covered by Wage Orders 3 (Canning, Freezing, and Preserving Industry), 8 (Industries Handling Products After Harvest), 13 (Industries Preparing Agricultural Products for Market, on the Farm), or 14 (Agricultural Occupations).
The person works for a “food facility,” which means an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, whether consumed on or off premises, as well as storage facilities for food-related utensils, equipment, and materials.
The person delivers food from a food facility.

Food Service Workers only include those persons who are essential workers under the Governor’s stay-at-home order, or any other statewide stay-at-home order. Employees who work from home do not qualify for the supplemental paid sick leave.

The Labor Commissioner’s Office, which enforces the Executive Order, has interpreted it to specifically encompass “grocery workers, restaurant or fast food workers, workers at warehouses where food is stored, and workers who pick-up or deliver any food items.”

What can this Covid-19 Supplemental Paid Sick Leave be used for?

The worker must be unable to work due to one of three reasons:

The Food Service 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; or
The Food Sector Worker is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

How much paid leave does the Food Sector Worker get?

It depends. The worker is entitled to 80 hours of COVID-19 Supplemental Paid Sick Leave if either (1) the employer considers the worker to work “full-time”; or (2) the worker worked or was scheduled to work an average of at least 40 hours per week in the two weeks preceding the start of the leave.

If the worker does not meet either of the above “full-time” requirements, then the amount of leave depends on the worker’s schedule. If the worker has a “normal weekly schedule,” the worker is entitled to leave equal to the total number of hours normally scheduled to work over two weeks. If the worker has a “variable schedule,” the worker is entitled to fourteen times the average number of daily hours worked in the preceding six months.

The leave provided by the Executive Order is in addition to any paid sick leave available under Labor Code section 246.

How much does this Supplemental Paid Sick Leave pay?

The food service worker is paid at the regular rate of pay for the worker’s last pay period. If the applicable state or local minimum wage is higher, then the worker gets that minimum wage. Regardless, pay is capped at per worker at $511 per day and $5,110 in the aggregate.

What is the process and when does this go into effect?

The Executive Order is effective immediately. The food service worker is entitled to leave immediately upon oral or written request by the worker to the employer. The worker, not the employer, may decide how many hours of leave to use, up to the total amount available. The employer may not require the worker to use any other paid or unpaid leave, including vacation or other paid sick leave, prior to using the supplemental paid sick leave.

The Executive Order remains in effect during the pendency of any statewide stay-at-home order, but a worker taking leave at the time such an order expires is permitted to continue to take the full amount of leave.

By April 23, 2020, the Labor Commissioner is supposed to publish a poster that eligible employers must post related to this Executive Order. For food service workers that do not frequent a workplace, the employer may email the poster to the worker.