California’s Additional Paid Sick Leave for Essential Food Sector Employees at Large Private Employers

On April 16, 2020, California Governor, Gavin Newsom issued Executive Order N-51-20. The April 16 Order, in short, provides an additional two weeks paid sick leave due to COVID-19 concerns for “Food Sector Workers,” such as agricultural farm workers, meat processing workers, dairy farmworkers, grocery workers, and food delivery workers. The additional leave is to be provided if: (1) the employee is subject to a federal, state, or local quarantine or isolation order; (2) the worker is advised by a health care professional to self-isolate or self-quarantine; or (3) the worker’s employer (a “Hiring Entity”) has prohibited the worker from working due to COVID-19.

The April 16 Order defines “Hiring Entity” as private employers with 500 or more employees in the United States. The April 16 Order is intended to fill a gap left by the federal Families First Coronavirus Response Act (the “FFCRA”), which left many food sector employees out in the cold since the FFCRA only applies to employers with less than 500 employees. For further information on the FFCRA, please see our post here.

As detailed in the April 16 Order, the Hiring Entity is required to pay employees sick leave in an amount up to a maximum of $511 per day, and $5,110 in the aggregate over the period the April 16 Order is in effect. Each “leave” hour is compensated at the highest of: (1) the worker’s regular pay rate in the last pay period; (2) California’s minimum wage; or (3) the local minimum wage to which the worker is entitled. Additional requirements and limits are detailed in the April 16 Order. You should review the terms of the order to evaluate your particular leave benefit, as the amount to which you may be entitled may vary based on your employment (e.g. full-time status, number of hours worked in a particular period) and other aspects of your employer’s current leave plan.

Newsom reportedly signed the April 16 Order after discussions with unions representing food service workers as well as the state legislature's Latino caucus. Newsom is quoted as stating that the food sector has “been hard hit by strife, by challenges in terms of health and safety, by concerns around what is happening within food processing plants and meatpacking plants." The widely reported issues faced by grocery and delivery workers are just the tip of the iceberg. Severe issues have also been brewing for weeks for workers at meat processing and packing plants (Smithfield Foods, Inc.; JBS USA; Tyson Foods, Inc.; Cargill, Inc.; Sanderson Farms, Inc.; and others), as well as for farmworkers. Indeed, COVID-19 has impacted every aspect of the food sector.

While it is hoped that something akin to the April 16 Order will be in place during all phases of the COVID-19 outbreak, the paid sick leave portion of the order is only effective during a statewide stay-at-home order. More broadly, however, the April 16 Order also permits workers at food facilities to wash their hands every 30 minutes, or as needed, to increase proper sanitation measures.

Newsom has provided that, in addition to all remedies available under existing laws (e.g. laws prohibiting unfair business practices), the California Labor Commissioner has the power to enforce the provisions of the April 16 Order.

Separately, in announcing the April 16 Order, California also emphasized new California Department of Industrial Relations Division of Occupational Safety & Health (“Cal/OSHA”) Guidance to help prevent infection in grocery stores (“Cal/OSHA Grocery Guidance”). While the Cal/OSHA Grocery Guidance does not impose new legal obligations, it contains a useful summary of current recommendations and certain current obligations imposed on employers. Please see our other post on the topic of personal protective equipment (“PPE”) for essential workers.

If you have any questions about the April 16 Order that are specific to your employment situation, please feel free to contact Haeggquist & Eck, LLP for more information and to arrange a free consultation with one of our attorneys.

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