On April 16, 2020, California Governor Gavin Newsom issued Executive Order N-51-20 (
click here
), which requires employers with 500 or more employees nationwide –
i.e.
, employers that are exempt from the requirements of the federal Families First Coronavirus Relief Act ("FFCRA") – to pay up to 80 hours of COVID-19 supplemental paid sick leave to a broad range of employees involved in processing, storing, distributing, selling, delivering or otherwise handling food sold to the public. The Order was effective immediately and will continue as long as any statewide stay-at-home orders remain in effect.
The rationale for the Order is to protect public health by decreasing the likelihood that workers who have COVID-19 symptoms or have been exposed to COVID-19 will nevertheless come to work to avoid losing pay, thereby transmitting the virus to food products and/or coworkers.
The Order uses the term "Hiring Entities" rather than "employer", and "Food Sector Workers" rather than "food sector employees," apparently to underscore that the Order's reach is not limited to direct employment relationships but would also reach putative independent contractors delivering food through applications like Postmates, Grubhub or Uber Eats. (The Order elsewhere provides that Hiring Entities must provide paid sick leave not only to workers employed "by" a Hiring Entity but also to those employed "through" a Hiring Entity, and it pointedly includes "delivery network companies" and "transportation network companies" in the definition of a "Hiring Entity.")
Hiring Entities Covered by the Order:
Q: What employees are counted in determining whether the Hiring Entity has 500 or more employees nationwide?
A:
The Order specifies that employees are to be counted in the same manner as is set out in the U.S. Department of Labor regulations implementing the FFCRA. Those regulations require that all employees working for the employer in the United States, including full-time employees, part-time employees, employees on leave, employees jointly employed with other employers, and employees from temporary employment agencies, must be counted.
Q: Are there any exemptions from coverage?
A:
Yes, a Hiring Entity which had a paid leave policy in place as of April 16, 2020 which allowed Food Sector Workers to take paid time off for the qualifying COVID-19-related reasons, and provided equal or greater compensation to workers than they would receive from taking COVID-19 Supplemental Paid Sick Leave under the Order is not required to provide leave under the Order.
Workers Covered by the Order:
Q: What workers are entitled to paid sick leave?
A:
The Order defines eligible Food Sector Workers to include any of the following:
- Workers in the "Canning, Freezing, and Preserving Industry" (as defined in Industrial Welfare Commission Wage Order 3);
- Workers in "Industries Handling Products after Harvest" (as defined in Wage Order 8);
- Workers in "Industries Preparing Agricultural Products for Market, on the Farm" (as defined in Wage Order 13);
- Workers in "agricultural occupation(s)” (as defined in Wage Order 14);
- Workers in a "food facility," defined by the Health and Safety Code as: "an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level," e.g., grocery stores, restaurants, cafeterias, food distribution centers, food trucks, etc. ; or
- Workers who deliver food from a food facility.
The order applies only to employees who must leave there homes in order to perform their work.
Q: For what reasons must the covered workers be allowed to use paid sick leave?
A:
The covered Food Sector Workers are entitled to take leave if they are unable to work because:
- The worker is subject to a federal, state or local COVID-19 quarantine or isolation order;
- The worker has been advised by a health care provider to self-quarantine or self-isolate "due to concerns related to COVID-19";
- The worker is prohibited from working by the Hiring Entity due to concerns related to potential transmission of COVID-19.
Amount of, and Pay Rate for, Supplemental Paid Sick Leave:
Q: How many hours of COVID-19 supplemental paid sick leave are Food Sector Workers entitled to receive for qualifying reasons?
A:
A Food Sector Worker who worked an average of at least 40 hours per week in the two weeks prior to taking leave,
or
who is otherwise considered to be working full-time by the Hiring Entity, is entitled to 80 hours of COVID-19 supplemental paid sick leave.
For part-time Food Sector Workers, if the worker has a normal weekly schedule, he or she is entitled to COVID-19 supplemental paid sick leave hours equivalent to the number of hours he or she is normally scheduled to work over a two week period. If the worker has variable weekly work hours, he or she is entitled to 14 times his or her average number of work hours per day over the last six months prior to taking leave. If the worker has not worked for six months, the calculation is based on the average hours per day the worker has worked since the he or she began working for the Hiring Entity.
Q: Is this an additional paid leave entitlement, on top of the paid leave requirement under California's Healthy Workplaces Healthy Families Act ("HWHFA")?
A:
Yes. A worker's entitlement to COVID-19 supplemental paid sick leave is separate and in addition to any leave the worker may be entitled to as an employee under the HWHFA.
Q: At what rate of pay must COVID-19 Supplemental Paid Sick Leave be paid?
A:
COVID-19 Supplemental Paid Sick Leave must be paid at the
highest
of the following wage rates:
- The Food Sector Worker's regular rate of pay for his or her last pay period before taking leave;
- The State minimum wage;
- The applicable local minimum wage.
However, payment is capped at $511 per day or a total of $5,110.
Q: What if all statewide stay-at-home orders are lifted before a Food Sector Worker has used up his or her paid leave entitlement under the Order?
A:
If a Food Sector Worker is on leave at the time that all statewide stay-at-home orders are lifted, the worker must be permitted to use any remaining COVID-19 paid sick leave that he or she would otherwise be entitled to under the Order.
Requesting and Being Paid for COVID-19 Supplemental Paid Sick Leave
Q: When can eligible Food Sector Workers take COVID-19 Supplemental Paid Sick Leave?
A:
An eligible Food Sector Worker can take COVID-19 Supplemental Paid Sick Leave immediately upon making with a written or oral request to the Hiring Entity.
Q: Can the Hiring Entity require a Food Sector Worker to use accrued sick leave or any other paid or unpaid time-off or vacation before, or in lieu of, using COVID-19 Supplemental Paid Sick Leave?
A:
No.
Q: Can the Hiring Entity Require a Food Sector Worker to find a replacement to cover for him or her?
A:
No. The Order incorporates a section from the HWHFA prohibiting requiring a worker to find a replacement. (Labor Code § 246.5(b).)
Q: When must the Food Sector Worker be paid?
A:
The Order incorporates a section from the HWHFA requiring payments no later than the next regular payday after leave commences.(Labor Code § 246(n).)
Q:
Is a Food Sector Worker protected from retaliation for taking or requesting leave under the Order?
A:
Yes. The Order incorporates the anti-retaliation provisions of the HWHFA. A Hiring entity cannot discriminate against a Food Sector Worker for asserting his or her rights under the Order. (Labor Code § 246.5(c).)
Enforcement:
Q: What recourse does a Food Sector Worker have if the Hiring Entity fails to provide COVID-19 paid sick leave in compliance with the Order?
A:
The Order authorizes a Food Sector Worker to file a wage claim with the Labor Commissioner, and authorizes the Labor Commissioner to enforce the Order to the same extent that it enforces claims for failure to provide paid sick leave under the HWHFA.
Q: Can a worker file a lawsuit against a Hiring Entity for failing to comply with the Order.
A:
Yes. Although the Order does not expressly create a private right of action for violations of the Order, it contemplates that a worker can file an unlawful business practices lawsuit against a Hiring Entity for violation of the Order under Business and Professions Code §§ 17200
et seq.
Notice to Employees:
Q: Are Hiring Entities required to give notice to Food Sector Workers regarding their rights under the Order?
A:
Yes. The Order incorporates a section from the HWHFA that requires the posting of a notice notifying workers of their rights, and it orders the Labor Commissioner to provide a model notice which Hiring Entities may use (to be issued no later than April 23, 2020.) If Food Sector Workers "do not frequent a workplace," the Hiring Entity can satisfy the notice requirement by disseminating notice electronically,
e.g.
by email.
Q:
Are Hiring Entities required to keep records related to COVID-19 Supplemental Paid Sick Leave used by Food Sector Workers?
A:
Yes. The Order incorporates a section from the HWHFA that requires keeping records documenting paid sick leave used by employees (Labor Code § 247.5). The documentation must be kept for three years and must be made available to the Labor Commissioner and to the worker to whom they pertain. Failure to keep adequate records showing that leave was provided will result in a presumption that the Hiring Entity did
not
provide leave unless it can produce clear and convincing evidence to the contrary.
Handwashing Provision
Q: Does the Order require Hiring Entities to provide frequent breaks for Food Sector Workers to wash their hands?
A:
Yes. The Order provides that Hiring Entities must permit Food Sector Workers to wash their hands every 30 minutes, and additionally as needed.
If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at
www.brgslaw.com
.
Sincerely,
Richard S. Rosenberg
Katherine A. Hren
Philip Reznik
Ballard Rosenberg Golper & Savitt, LLP
