Sunday, February 5, 2023

COVID-19 Prompts Extra Paid Sick Leave for Food Sector Workers

On April 16, Governor Gavin Newsom signed Executive Order N-51-20, creating a COVID-19 Supplemental Paid Sick Leave that requires employers, who are covered by Industrial Welfare Commission Wage Orders 3, 8, 13 and 14, Health and Safety Code section 113789 and have 500 or more employees, to provide up to two weeks (80 hours) of supplemental paid sick leave to food sector workers unable to work due to COVID-19.

Updated 4/20/2020: The California Department of Industrial Relations has published frequently asked questions on Supplemental Paid Sick Leave for Food Sector Workers.

4/23/2020: The Labor Commissioner released the Supplemental Paid Sick Leave poster for food sector workers.

Who’s Covered

The COVID-19 Supplemental Paid Sick Leave is limited in scope and applies only to food sector workers (such as farmworkers, agricultural workers and those working in grocery stores and fast food chains), and delivery network companies/drivers.

Workers covered under the order are entitled to take supplemental sick leave if they’re unable to work because they are:

1. Subject to a federal, state or local quarantine or isolation order related to COVID-19;

2. Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or

3. Prohibited from working by the “Food Sector Worker’s Hiring Entity” due to health concerns related to the potential transmission of COVID-19.

Amount of Sick Leave Time

The total amount of supplemental sick leave time a qualified employee may take depends upon the number of hours that individual normally works.

A worker considered “full-time”—or who worked or was scheduled to work on average at least 40 hours per week in the two weeks preceding the date supplemental leave was taken—is entitled to the maximum of 80 hours of COVID-19 Supplemental Paid Sick Leave.

Food sector employees not considered full-time or who work less than 40 hours per week are entitled to leave equal to the total hours they’re normally scheduled to work over two weeks. The order also provides for a method of calculating leave for a food sector worker on a variable-hour work schedule.

The leave must be made available upon the qualified food sector worker’s oral or written request and be paid out at a rate equal to the highest of either the:

• Worker’s regular rate of pay for the last pay period;

• State minimum wage; or

• Local minimum wage.

Pay may not exceed $511 per day and $5,110 in total.

The COVID-19 Supplemental Paid Sick Leave is in addition to paid sick leave already required under California’s Healthy Families Healthy Workplace sick leave law, and it will be enforced in the same manner.

New Notice, Hand-Washing Standard

The order also includes a new notice requirement: The Labor Commissioner shall make publicly available a model notice by April 23, 2020, and this notice must be posted in a conspicuous location. However, if the employer has food sector workers who don’t frequent the workplace, the notice may be distributed by electronic means, such as via email.

Finally, the order also establishes a hand-washing standard; employees working in any food facility can wash their hands every 30 minutes and more, as needed. This standard is enforced under provisions of the Retail Food Code.

At the federal level, the Families First Coronavirus Response Act (FFCRA) went into effect on April 2, 2020, granting emergency paid sick leave benefits to employees unable to work due to COVID-19-qualifying events. Because the FFCRA was limited to employees who work for an employer with fewer than 500 employees, California’s COVID-19 Supplemental Paid Sick Leave is intended to fill the gap by providing food sector employees working for such employers with additional COVID-19-related sick leave benefits.

CalChamber COVID-19 Resources

Visit the CalChamber Coronavirus (COVID-19) webpage for more COVID-19-related federal, state and local resources, including CalChamber coverage.

Access additional COVID-19-related posts on the HRWatchdog blog.

Staff Contact: Erika Frank

Erika Frank
Erika Frank
Erika Frank, longtime general counsel and executive vice president of legal affairs for the CalChamber, accepted an of counsel position in September 2021 at the Shaw Law Group, a leading employment law firm in Sacramento. She leveraged more than two decades of legal, governmental and legislative experience in advising the CalChamber and its members on the impact that labor laws, court decisions and regulations will have on employers. She has been the most frequent host of The Workplace podcast; oversaw and contributed to CalChamber labor law and human resources compliance publications; co-produced and presented webinars and seminars; and headed the Labor Law Helpline. She holds a B.A. in political science from the University of California, Santa Barbara, and earned her J.D. from the McGeorge School of Law, University of the Pacific.

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