On March 19, 2020, the State of California issued Executive Order N-33-20 compelling all individuals living in California to stay home or at their place of residence except as needed to maintain continuity of operations of the 16 federal critical infrastructure sectors found at www.cisa.gov/critical-infrastructure-sectors.
On Sunday, April 16, 2020, Governor Newsom issued Executive Order N-51-20. This Order mandates that the hiring entity (i.e. the employer) to pay its food sector workers supplemental paid sick leave.
Which workers are covered? The Executive Order applies to food sectors workers, which includes farm workers, food processors, grocery store workers, restaurant workers, and more. The worker must either:
1) work in one of the industries or occupations defined in Wage Order 3-2001 Section 2(B); Wage Order 8-2001 Section 2(H) ; Wage Order 13-2001 Section 2(H); or Wage Order 14-20012(D);
2) be employed by a Hiring Entity that operates a food facility; or
3) delivers food from a food facility for or through a hiring entity. “Food facility” means an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, including vending machines!
The worker must also be exempt as an essential critical infrastructure worker (Executive Order N-33-20) and must perform work outside of his or her own home.
What is a “hiring entity”? A hiring entity is any private business with 500 or more employees within the United States. Government entities are not covered by this Order. However, the hiring entity will not be required to pay the Supplemental Paid Sick Leave if it already provides a paid benefit, such as paid time off, and the pre-existing benefit would pay at least as much as the supplemental paid leave.
The Order also mandates that a “delivery network company” will be considered a “hiring entity” for purposes of the supplemental paid sick leave. A “delivery network company” is defined as “newspapers, internet websites, and other entities that advertise tangible personal property for sale, refer purchasers to sellers by telephone, internet link, or other similar means to complete the sale, and do not participate further
Taking Supplemental Paid Sick Leave. The employer must provide COVID-19 Supplemental Paid Sick leave if the food sector worker is 1) ordered to quarantine or self-isolate by the government, 2) advised by a healthcare professional to isolate due to concerns related to COVID-19, or 3) the employer prohibits the food sector worker from working due to health concerns related to COVID-19.
The food sector worker is entitled to Supplemental Paid Sick Leave as follows:
· 80 hours is the food sector worker is considered full-time or worked an average of 40 hours per week in the two weeks preceding the leave;
· 2 weeks x normally scheduled hours, if the food sector worker has a normal schedule, or
· 14 x the average number of hours worked each day (over the course of six months), if the worker has a variable schedule.
The food sector worker is entitled to be paid the highest of
1) the regular rate of pay for the last pay period, or
2) the State’s minimum wage, or
3) the local minimum wage (check you city ordinances!),
Up to a maximum of $511 per day or $5,110 total.
Enforcement mechanisms. Employees have the right to enforce this Executive Order in court if employers fail to provide the Supplemental Paid Sick Leave or if employers retaliate against workers for using or attempting to use this sick leave. This Order also enables the Labor Commissioner to enforce the Supplemental Paid Sick L eave as” paid sick days” under the Labor Code. Employers must display a poster containing information about COVID-19 Supplemental Paid Sick Leave or employers may provide the required notice electronically (i.e. email) to workers if the workers are not frequently present at the workplace.