California food sector workers now have the right to additional paid sick leave, even if they work for large employers exempted from the federal Families First Coronavirus Response Act (FFCRA). And they are also entitled to handwashing breaks every 30 minutes and additionally as needed.
On April 16, 2020, Gov. Gavin Newsom issued an executive order requiring food sector employers with 500 or more employees to grant paid sick leave, above and beyond the state’s regular paid sick leave requirement. As explained here and here, many employees working on the front lines – including those in the supply, preparation, and/or delivery of food – are not eligible for FFCRA benefits if they work for employers with 500 or more employees.
While other state and local governments are beginning to expand FFCRA-like benefits to other employees working for large businesses, Governor Newsom’s order is aimed at workers in the canning, freezing, and preserving industry (IWC Order No. 3-2001), meat packing industry (IWC Order No. 8-2001 and 13-2001), agriculture (IWC Order No. 14-2001), retail food operations such as restaurants, farmers’ markets, and commissaries, and food delivery service workers who deliver food for “essential businesses.”
Under the new order, such workers are eligible for COVID-19 Supplemental Paid Sick Leave if they (1) are advised by a health care provider or public authority to quarantine or self-isolate due to concerns regarding COVID-19 or (2) are prohibited from working by their employer due to concerns regarding potential transmission of COVID-19. Unlike the FFCRA, the executive order does not provide paid sick leave for food sector employees who need time off from work to care for family members due to COVID-19 – and it does not provide a tax credit to cover the cost, as the FFCRA does.
The California food sector workers’ order requires paid supplemental sick leave based on the number of hours the employee typically works over a two-week period. Thus, a full-time worker would receive 80 hours of supplemental paid sick leave. Part-time workers or those with variable schedules will be entitled to leave based on either their “normally” scheduled hours over a two-week period or 14 times their average daily hours.
The supplemental leave must be compensated at the highest of the applicable state or local minimum wage or the employee’s regular rate of pay, with any benefits capped at US$511 per day (US$5,110 in the aggregate). Employers may not require workers to use any other paid or unpaid leave in lieu of the COVID-19 Supplemental Paid Sick Leave, but if they provide leave that is more generous than the maximum required, they need not provide supplemental leave.
The Supplemental Paid Sick Leave requirement will remain in effect until the statewide Stay-at-Home Order is lifted. Food sector employers will be required to post a notice about the new entitlement; the Labor Commissioner should make one available by April 23, 2020.
In addition to imposing the new paid sick leave requirement, the Governor’s order also requires employers in any food facility to be allowed to wash their hands every 30 minutes and additionally as needed – similar to a requirement recently imposed by the City of Los Angeles.
The local and state requirements for essential businesses continue to evolve and change. For more information regarding California paid leave requirements or other issues related to COVID-19 and the workplace, please contact one of the authors of this blog post or the Hogan Lovells lawyer with whom you work.