California Increases Paid Sick Leave Obligations on Large Food Sector Employers

April 20, 2020

On April 16, 2020, California Gov. Gavin Newsom issued Executive Order N-51-20 to provide California food sector workers who are not covered by federal paid leave laws with supplemental paid sick leave for COVID-19-related reasons. Executive Order N-51-20 provides qualifying workers with up to 80 hours of supplemental paid sick leave.

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (FFCRA). As previously reported, FFCRA requires private employers with fewer than 500 employees each (and state and local government employers, regardless of size) to provide special paid emergency FMLA leave and paid sick leave related to COVID-19 in certain circumstances beginning April 1, 2020.

Because FFCRA expressly covers only private employers with 499 or fewer employees, various California cities have begun enacting local laws that provide supplemental sick leave benefits to employees who work for employers operating in their jurisdictions and which employ 500 or more employees. For example, as previously reported, Los Angeles Mayor Eric Garcetti issued an emergency order on April 7, 2020, which affords up to 80 hours of supplemental paid sick leave time for employees in the city of Los Angeles who are impacted by COVID-19 and who work for employers that employ 500 or more employees within Los Angeles, or 2,000 employees in the country.

Executive Order N-51-20 is the latest expansion of California sick leave laws to large employers. Executive Order N-51-20 applies to persons who work (i) in the canning, freezing and preserving industry; (ii) in industries handling products after harvest; (iii) in industries preparing agricultural products for market; (iv) in an agricultural occupation; and (v) in, or deliver food for, a “food facility,” namely those that store, prepare, package, serve, vend or otherwise provide food for human consumption at the retail level. Workers covered by Executive Order N-51-20 also must be exempt from any statewide stay-at-home order and must need to leave home to perform work for their employers.

The supplemental paid sick leave is available for workers who are unable to work because they are subject to a COVID-19-related quarantine or isolation order, or have been advised by a healthcare provider to self-quarantine or self-isolate due to COVID-19, or as a result of health concerns related to the potential transmission of the virus.

Workers covered by Executive Order N-51-20 are entitled to 80 hours of supplemental paid sick leave if they are deemed “full-time” or if they worked or were scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the worker took leave. Executive Order N-51-20 also specifies a formula for calculating a lesser amount of paid sick leave for persons who do not satisfy the “full-time” criteria, but who nevertheless have a normal weekly schedule or who work a variable number of hours.

All persons to whom Executive Order N-51-20 applies 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. The paid sick leave provided by Executive Order N-51-20 is available for immediate use upon the oral or written request of the employee and is over and above sick leave benefits to which covered employees are entitled under state law. In addition, employers cannot require their employees to use any other available paid or unpaid leave, paid time off or vacation time prior to using paid sick leave mandated by Executive Order N-51-20.

The sick leave afforded under Executive Order N-51-20 must be compensated at a rate equal to the highest of: (i) the worker’s regular rate of pay for the last pay period; (ii) the state minimum wage (currently $12 an hour for employers with 25 or less employees and $13 an hour for employers with 26 or more employees); or (iii) the local minimum wage to which the person is entitled. In no event, however, is an employer required to pay more than $511 per day or $5,110 in the aggregate during the time Executive Order N-51-20 is in effect. Employees are not entitled to any benefits under the Executive Order N-51-20 if, as of its effective date, their employers already provide a supplemental benefit, such as paid sick leave, covering the circumstances specified in Executive Order N-51-20 that provides equal or greater benefits.

Apart from providing for supplemental paid sick leave, Executive Order N-51-20 requires that employees working in a “food facility” (as defined above) be permitted to wash their hands every 30 minutes and additionally as needed.

Finally, Executive Order N-51-20 states that it will remain in effect during the pendency of any statewide stay-at-home orders, and that those persons taking leave under Executive Order N-51-20 at the time of expiration of all stay-at-home orders shall be permitted to take the full amount of leave afforded under Executive Order N-51-20. It also imposes notice requirements on employers and sets forth the remedies and enforcement mechanisms for employer violations.

If you have questions about how this order impacts your business, please contact any of the McGuireWoods team members listed below, or any other member in the labor and employment group

McGuireWoods has established a COVID-19 Response Team to help clients navigate urgent and evolving legal and business issues arising from the novel coronavirus pandemic. Lawyers in the firm’s 21 offices are ready to assist quickly on questions involving healthcare, labor and employment, education, real estate and more. For assistance, contact a team member or email [email protected].