How California’s Expansion of Paid Sick Leave Impacts Food Sector Employers

On April 16, 2020, California Governor Gavin Newsom signed Executive Order (EO) N-51-20, which imposes new obligations on employers to provide up to 80 hours of supplemental paid sick leave to certain food sector workers. The following overview provides answers to common questions, including: (1) which food service workers are covered by EO N-51-20; (2) what an employer’s obligations are to those covered workers; and (3) how EO N-51-20 interacts with other laws.

Question 1. Which food sector workers are entitled to supplemental paid sick leave under EO N-51-20?

Answer 1. A worker is entitled to expanded paid sick leave under EO N-51-20 if the following four conditions are met:

1. The person is exempt from statewide stay-at-home orders
2. The person works for a private employer with 500 or more employees in the United States
3. The person works in any of the following industries or occupations not within his or her home:
   • A “food facility,” which is a broad term that means “an operation that stores, prepares, packages, vends, or otherwise provides food for human consumption at the retail level” (e.g., grocery stores, cafeterias, and restaurants)
   • Delivery services from food facilities
   • The canning, freezing, and food preservation industry under California Industrial Wage Commission (IWC) Wage Order 3-2001
   • Industries handling foods after agricultural harvest under IWC Wage Order 8-2001
   • Industries preparing agricultural products for market under IWC Wage Order 13-2001
   • Agricultural operations under IWC Wage Order 14-2001
4. The person is unable to work due to:
   • local stay-at-home orders;
   • a health care provider’s advice that self-quarantine or self-isolation is warranted due to COVID-19 concerns; or
   • the employer’s requirement that the worker refrain from working due to COVID-19 concerns.

Q2. What are an employer’s obligations to workers covered by EO N-51-20?

A2. If a worker is deemed to be in the food sector, the employer’s obligations are as follows:

• Make available supplemental paid leave “for immediate use” upon oral or written request. An employer cannot require that a covered worker take other available “paid or unpaid leave, paid time-off, or vacation time” before taking COVID-19 supplemental paid sick leave.
• Ensure the leave is compensated at a rate equal to the worker’s regular rate of pay during the last pay period (but no more than $511 per day and $5,110 in the aggregate for the period that EO N-51-20 is in effect).
• Post a notice to covered workers of their supplemental leave entitlement.
• Provide up to 80 hours of supplemental paid sick leave. (See Q&A 3 for the criteria a worker must meet to be entitled to 80 hours of supplemental sick leave.)

It is illegal to retaliate against workers who exercise their rights to take supplemental paid sick leave pursuant to EO N-51-20.

Q3. How is the number of supplemental sick leave hours determined?

A3. The number of supplemental sick leave hours an employer must provide to a covered worker depends on the worker’s full-time status. A worker is entitled to up to 80 hours of sick leave if either of the following two conditions are met:

• the employer considers the worker “full-time”; or
• the employee worked or was scheduled to work at least 40 hours per week in the 2 weeks before sick leave was sought.

Part-time covered employees are also entitled to supplemental sick leave, albeit at a lesser amount. For a covered worker with a normal weekly schedule, an employer must provide sick leave in an amount equal to “the total number of hours [the worker] is normally scheduled to work for or through [the employer] over two weeks.” As an illustration, say an employer schedules a covered worker for 16 hours per week. Under EO N-51-20, that worker is entitled to 32 hours of supplemental sick leave.

For covered part-time workers not subject to normal weekly schedules, an employer must provide 14 times the average number of hours the covered worker worked each day in the 6 months before taking COVID supplemental leave. As an illustration, take a worker who has worked an average of three hours per day over the past six months. Under EO N-51-20, an employer must provide the covered worker with 42 hours of supplemental sick leave.

Q4. What if an employer already provides 80 hours of paid sick leave to covered employees?

A4. Under EO N-51-20, an employer must provide covered workers with paid sick leave that is in addition to paid sick leave otherwise required by California law (up to 24 hours per year in most circumstances).

However, an employer is not required to provide covered employees with more than the supplemental paid sick leave they are entitled to under EO N-51-20. The following serve as several useful illustrations:

Those employers that are already providing paid sick leave in excess of the minimum required may want to ensure that they are following the other obligations listed above (including the proper rate of pay, the ability to take the leave immediately, and the posting requirement).

Q5. How long do the employer obligations set forth in EO N-51-20 remain in effect?

A5. Under EO N-51-20, the requirement to provide COVID-19 supplemental paid sick leave remains in effect “during the pendency of any statewide stay-at-home orders issued by the State Public Health Officer.” If a covered worker is on a supplemental paid sick leave at the time a statewide stay-at-home order expires, that covered worker can continue to take the full amount of paid supplemental leave to which he or she is entitled.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.