California Supplemental Paid Sick Leave for Food Sector Workers 

April 17, 2020

On April 16, 2020, California Governor Gavin Newsom signed Executive Order N-51-20 extending COVID-19 supplemental paid sick leave to qualified food sector workers in California. The order is intended to provide sick leave benefits to thousands of California Food Sector Workers who were not covered under the federal Families First Coronavirus Response Act, including undocumented workers. As such, the order defines food sector workers broadly. The governor’s order includes many requirements and exceptions, so employers who believe they may be covered under the order should consult with counsel when deciding whether to change policies or practices.

Employers are generally covered under the order if they are a “hiring entity” — defined as a “private sole proprietorship of any kind or any kind of private entity whatsoever” — that has 500 or more employees in the United States. Hiring entities are exempt from the order if they already provide their employees with supplemental benefits (such as paid leave or PTO) in excess of the amount the worker would be compensated if granted the 80 hours of paid sick leave under the order, and if the leave may be used for a COVID-19 qualifying reason, as listed below.  

Hiring entities are required to provide food sector workers with up to 80 hours of sick leave at the highest of: the worker’s regular rate of pay as evidenced by the last pay period, the state minimum wage rate, or the local minimum wage. The amount of pay owed to employees is capped at $511 per day and $5,110 in the aggregate.

Qualifying workers may take leave for any of the following reasons:

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

In order to qualify as a food sector worker, an individual must satisfy three different criteria.

  1. First, the person must satisfy any of the following:
  • The person works in one of the industries or occupations defined in Industrial Welfare Commission Wage Order 3-2001 § 2(B), Order 8-2001 § 2(H), Order 13-2001 § 2(H), or Order 14-2001 § 2(D); or
  • The person works for a hiring entity that operates a food facility as defined in Health and Safety Code section 113789(a)-(b); or
  • The person delivers food from a food facility, as defined in Health and Safety Code section 113789(a)-(b), for our through a hiring entity; and
  1. The person is exempt as an essential critical infrastructure worker under the governor’s stay at home order; and
  2. The person leaves their home or residence to perform work for or through the hiring entity.

Workers are entitled to 80 hours of paid sick leave if the worker is considered a full time employee by the hiring entity or if they worked or was scheduled to work, on average, at least 40 hours per week for the hiring entity in the two weeks preceding the date the worker took COVID-19 supplemental paid sick leave. However, a worker may also be entitled to a lesser amount of sick leave if they worked less than full-time hours. If the worker has a normal weekly schedule of less than 40 hours (e.g. 30 hours each week), the worker is entitled to the total number of hours scheduled for two weeks (e.g. 60 hours of leave). If the worker has a variable schedule, the worker is entitled to 14 times the average number of hours the worker worked each day during the last six months. 

If a worker qualifies for supplemental paid sick leave, hiring entities may not require workers to use other unpaid leave, paid time off, or vacation time prior to or in lieu of using COVID-19 supplemental paid sick leave.

Finally, the governor also ordered that all food sector workers be allowed to wash their hands at least every 30 minutes and additionally as needed.

The governor’s order is effective throughout the pendency of the statewide stay-at-home order. Hiring entities are also required to post a notice of the order’s requirements in accordance with Labor Code section 247. A model notice will be made available by the Labor Commissioner by April 23, 2020.