California Enacts New Supplemental Paid Sick Leave for Food Industry and Agricultural Workers

As of April 1, 2020, the federal Families First Coronavirus Response Act (FFCRA) requires employers of fewer than 500 employees to provide emergency paid sick leave benefits to employees who may not be able to work because of COVID-19. Notwithstanding the FFCRA, California has determined that “many food sector workers continue to lack access to paid sick leave.” Therefore, Executive Order N-51-20 is intended to provide supplemental paid sick leave for those food sector and agricultural workers who are not covered by the FFCRA in order to ensure that those “Californians who help grow and harvest the food in California’s farms and fields, work in our food facilities, and deliver food from our food facilities” are able to use paid sick leave to reduce the spread and/or mitigate the effects of COVID-19.

Which Workers Are Covered? 

Seeking to cover food sector and agricultural workers not eligible for additional paid sick leave under the FFCRA, Executive Order N-51-20 applies to private employers who have 500 or more employees in the United States. A business will count employees the same way as in the FFCRA, i.e. full-time and part-time employees, employees on leave, temporary employees who are jointly employed by the employer and another employer, and day laborers supplied by a temporary placement agency. Employees who have been laid off or furloughed and have not subsequently been reemployed do not count for purposes of determining whether an employer has 500 or more employees.

However, as of April 16, 2020, there is one exception where an employer does not have to provide the supplemental paid sick leave under Executive Order N-51-20, and that is where an employer has already provided a “supplemental benefit,” such as paid sick leave, of the same or greater benefit level than that set forth in the Executive Order.

Which “Food Sector Workers” Are Covered by Executive Order N-51-20? 

To qualify for COVID-19 Supplemental Paid Sick Leave, a “Food Sector Worker” must perform work for or through

1. Be exempt from the Stay-at-Home Order (i.e. those who are deemed essential workers); 
2. Perform work for the business outside the home; and 
3. Satisfy one of the following:
   1. Works in one of the agricultural industries or occupations defined in Industrial Welfare Commission (IWC) Wage Order 3-2001 § 2(B) (the canning, freezing, and preserving industry); IWC Wage Order 8-2001 § 2(H) (industries processing agricultural products after harvest); IWC Wage Order 13-2001 § 2(H) (facilities on a farm that prepare products for market); or IWC Wage Order 14-2001 § 2(D) (general agricultural occupations);
   2. Works for a business that runs a food facility, which includes grocery stores, fast-food restaurants, and distribution centers; or
   3. Works to deliver food from a food facility for or through a hiring entity.

The California Labor Commissioner has recognized the broad scope of Executive Order N-51-20, stating that “[t]he type of food sector worker the Executive Order covers ranges from farmworker and agricultural occupations to those workers who work in the retail food supply chain, including pick-up, delivery, supply, packaging, retail or preparation.” 

Additionally, in a press release about Executive Order N-51-20, Gov. Newsom said, “These workers on the front lines of this crisis are our unsung heroes for continuing to work to ensure that Californians have food on their tables during these challenging times, and we must do everything in our power to make sure they are taken care of at home and in the workplace. Making sure they have paid sick leave and added protections in their place of work is critical.”

How Can Supplemental Paid Sick Leave Be Used? 

The food sector worker must be unable to work due to one of the following reasons:

• The worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
• The worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
• The worker is prohibited from working by their hiring entity due to health concerns related to the potential transmission of COVID-19.

How Much Supplemental Paid Sick Leave Must be Provided to Full-Time and Part-Time Employees? 

If the employer considers the worker to be a full-time employee or they worked or were scheduled to work an average of at least 40 hours per week in the two weeks before the leave is taken, the individual is entitled to 80 hours of supplemental paid sick leave under Executive Order N-51-20.

However, if the worker is part-time, the amount of leave depends on the worker’s schedule. If the individual has a “normal weekly schedule,” the number of hours they may take as supplemental paid sick leave will be the amount they are normally scheduled to work over two weeks. For part-time workers who have a “variable schedule”, the individual will be entitled to fourteen times the average number of daily hours worked in the preceding six months. And, if the part-time employee has worked for the hiring entity for fewer than six months, this calculation would be done over the entire period that they have worked for the hiring entity.

Importantly, this supplemental paid sick leave is in addition to any paid sick leave available under Labor Code section 246.

What Does an Employer Have to Pay? 

Workers who use this supplemental paid sick leave are compensated “at a rate equal to the highest of:

1. The individual’s regular rate of pay for the last pay period; 
2. The state minimum wage; or 
3. The local minimum wage to which the employee is entitled.

Tracking the FFCRA, the amount an individual may receive in supplemental paid sick leave cannot exceed $511 per day or $5,110 in the aggregate.

What is the Process to Use Supplemental Paid Sick Leave? 

Individual workers, not the employer, may determine how many hours of paid sick leave they wish to use, up to the maximum amount of leave to which they are entitled. This supplemental paid sick leave is available for immediate use by the worker upon their oral or written request. Employers are not permitted to require employees to use other available paid or unpaid time off, such as vacation or other accrued paid sick leave, prior to using this supplemental paid sick leave.

Retaliation Prohibited

Executive Order N-51-20 also prohibits retaliation. An employer may not terminate, reduce compensation, or otherwise discriminate against any worker who requests or takes supplemental paid sick leave.

Notice Requirement and Washing Your Hands 

Under the Executive Order, employers are required under Labor Code section 247 to display a poster in a conspicuous place that contains information about the supplemental paid sick leave. If an employer’s food sector and agricultural workers do not frequent a workplace, an employer may satisfy the notice requirements by disseminating notice through electronic means. Here is a link to the poster that the Labor Commissioner posted on April 23, 2020 – CA COVID-19 Supplemental Paid Sick Leave for Food Sector Workers.

The Executive Order requires that individuals working in any food facility, as defined by Health and Safety Code section 113789, be permitted to wash their hands every 30 minutes and additionally as needed.

Enforcement

The California Labor Commissioner will enforce the provisions of Executive Order N-51-20 providing for Paid Supplemental Sick Leave for food industry and agricultural workers. An aggrieved worker may file a complaint with the Labor Commissioner for any alleged violations committed by the employer with respect to the Executive Order. In addition, the Executive Order expressly references potential remedies available under state laws, including California’s Unfair Competition Law, Business & Professions Code section 17200 et seq. for non-compliance with the Executive Order. Therefore, failure to comply with the Executive Order carries the potential for various avenues of legal action against the employer.

Takeaways

Executive Order N-51-20 is yet another governmental effort to provide additional relief to California workers adversely impacted by the COVID-19 crisis. Importantly, this Executive Order expands supplemental sick leave due to COVID-19 related reasons to a broad scope of food sector workers, including those working in California’s $65 billion agricultural industry. Employers with food sector workers, including agricultural workers as defined above, must take note and ensure compliance. This Executive Order, along with other local ordinances in California, adds another layer of compliance for employers engaged in this important industry. Employers are urged to monitor these new developments closely, including any future changes, and consult with counsel concerning best practices for compliance.