April 22, 2020 Governor Newsom Announces Paid Sick Leave For Food Service Workers

Last week, on April 16, 2020, Governor Newsom issued an Executive Order which provides up to two weeks of supplemental paid sick leave to certain food sector workers for specified COVID-19-related purposes. Details of the Order, which became effective immediately, are provided below.

1. Which employers are covered by the new law?

The Order applies to private employers with 500 or more employees nationally. The employee count is determined at the time an employee’s leave is taken, and includes all employees in the United States (including part-time and temporary employees, as well as day laborers supplied by a temporary agency).     

2. What must employers provide?

Covered employers (referred to as “Hiring Entities”) must offer eligible employees up to 80 hours of “COVID-19 Supplemental Paid Sick Leave” to all full-time eligible employees (pro-rated for part-time employees). 

3. Which employees qualify for the new paid sick leave benefits?

The Ordinance defines a “Food Service Worker” as any person who meets the following conditions:

1. The person satisfies any of the following:

a. The person works in an industry or occupation covered by Industrial Welfare Commission Wage Order 3 (Canning, Freezing & Preserving Industry), 8 (Industries Handling Products After Harvest), 13 (Industries Preparing Agricultural Products for Market, on the Farm), or 14 (Agricultural Occupations); or

b. The person works for a Hiring Entity that operates a “food facility,” as defined; or

c. The person delivers food from a “food facility,” as defined; and

2. The person qualifies as an Essential Critical Infrastructure Worker and is exempt from any stay-at-home order; and

3. The person leaves their home to perform work.

Generally, this will include any farm workers, agricultural workers, those working in grocery stores and restaurants that provide take-out, and delivery drivers.

4. Are there any exemptions to coverage?

Hiring Entities are not required to provide Food Sector Workers with Supplemental Paid

Sick Leave if, as of April 1, 2020, the Hiring Entity provides the relevant Food Sector Worker with a supplemental benefit (such as paid leave) that is payable for any COVID-19 related reason. The supplemental benefit must be equal to, or greater than, the amount the Food Sector Worker would be entitled to under the Order.

5. How much paid sick time are employees entitled to receive?

Full-time employees (those who work at least 40 hours per week or are considered by their Hiring Entity as full-time) are entitled to 80 hours of Supplemental Paid Sick Leave.

Part-time employees with a normal weekly schedule are entitled to Supplemental Paid Sick Leave equal to the total number of hours normally scheduled over two weeks.

Part-time employees with variable work hours are entitled to Supplemental Paid Sick Leave equal to 14 times the average number of hours the employee worked each day in the six months preceding the date the employee’s leave is taken. If the employee has worked for the Hiring Entity for less than six months, the calculation is made over the entire period of employment.

The amount of Supplemental Paid Sick Leave per employee is capped at $511 per day, and $5,110 in total.

6. When can an employee use Supplemental Paid Sick Leave?

Employees will qualify for Supplemental Paid Sick Leave when they are unable to work for any of the following reasons:

1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19. 

2. The employee is advised by a health care provider to self-quarantine.

3. The employee is prohibited from working by their employer due to health concerns related to potential transmission of COVID-19.

Additionally, employers cannot require employees to use any other paid or unpaid leave, paid time off, or vacation time before (or in lieu of) using Supplemental Paid Sick Leave.

7. Are employees required to give notice to employees about the Supplemental Paid Leave benefit?

Yes. By April 23, 2020, the Labor Commissioner will make available on its website a notice suitable for employers to inform employees of their rights under the Order. Employers must provide the notice to employees by posting it in a conspicuous place at the workplace. If Food Sector Workers do not frequent a workplace, employers may satisfy the notice requirement by disseminating the notice via email or other electronic means. 

Mary Allain   Fred Plevin

For further information, questions, or assistance regarding paid sick leave benefits, please contact us. PPSC has a dedicated COVID-19 response team and is committed to assisting our valued clients through these challenging and fast-changing times.