In response to the COVID-19 pandemic, the federal government recently passed emergency legislation making up to two weeks of paid sick leave benefits available to employees who are forced to miss work for reasons relating to COVID-19. We previously blogged about the paid sick leave made available under the Families First Coronavirus Response Act (“FFCRA”) here and here. The FFCRA’s paid sick leave, however, is not available to employees of large employers, defined as those with at least 500 employees. California has now stepped up to fill that gap for employees in the food supply sector who work for these larger employers.
On April 16, 2020, Governor Gavin Newsom signed Executive Order N-51-20, which provides two weeks of paid sick leave to food supply sector employees who are unable to work due to any of the following:
- A quarantine or isolation order in place by the federal, state, or local government related to COVID-19;
- Being advised by a healthcare provider to self-quarantine due to COVID-19 concerns;
- Being prohibited by a hiring entity from working due to COVID-19 concerns.
The order applies to “Food Sector Workers,” which includes farmworkers, agricultural workers, workers who can, freeze, preserve, or harvest food, grocery store and restaurant workers, and delivery drivers. The leave is available to any of the above workers who perform work for a “hiring entity,” which is defined as any entity that has 500 or more employees in the United States.
The Order provides up to 80 hours of paid sick leave for any workers who an employer considers to be full time or those who worked or were scheduled to worker at least 40 hours per week, on average, in the two weeks preceding the date the worker began using the sick leave. In turn, part-time employees are entitled to take up to the average number of hours they are normally scheduled to work over two weeks. If a part-time worker has a variable schedule, they are entitled to take up to 14 times the amount of daily hours they averaged over the preceding 6 months.
The leave is available to all qualifying workers immediately upon either oral or written request. Sick leave hours must be paid at the higher of the workers’ regular rate of pay, the state minimum wage, or the local minimum wage where the worker performs work, but in no event will a worker be entitled to more than $511 per day or an aggregate cap of $5,110.
The intent of the Order is to fill the gap left under the FFCRA that provides similar paid sick leave only to employees of employers with fewer than 500 workers, rather than to provide additional leave to employees who already qualify. The amount of paid sick leave available, and the floors and caps on the amount of pay are identical to those set forth in the FFCRA’s paid sick leave. In addition, employers are not required to provide additional leave under the Order to those employees who are already entitled to equivalent paid sick leave under the FFCRA or as a discretionary benefit from the employer.
There is, however, one key distinction between the FFCRA leave and the paid sick leave available under Executive Order N-51-20. Whereas employers are entitled to a dollar-for-dollar tax credit for all sick leave paid under the FFCRA, no such tax credit language was included in the State Order. Unless further legislation is passed covering this discrepancy, large employers paying sick leave under this Order will not be reimbursed for it from the State.
In addition to making the sick leave available, employers must post notice to employees of their leave rights under the Order. The Labor Commissioner’s office has created a notice for this purpose, a copy of which can be found here. Finally, in addition to the paid sick leave discussed above, the Order requires that all food sector workers be permitted to wash their hands every 30 minutes and additionally as needed. Should any employer fail to comply with the order, employees may file complaints with the Labor Commissioner.
California employers should continue to monitor our blog for future updates concerning employment developments as a result of the COVID-19 pandemic. We also advise employers to seek legal advice to determine whether Executive Order N-51-20 applies to their business, and if so, what steps to take to ensure compliance.