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California's New Supplemental COVID-19 Paid Sick Leave for the Food Sector

On April 16, Governor Newsome issued an Executive Order that will provide to employees in the food sector two (2) weeks of paid time off for quarantine, isolation and other medical directives. This executive order is intended to fill a gap that Newsome believes was left by federal relief which provides similar paid leave benefits for employers with fewer than 500 workers.

Workers in the food sectors, including farmworkers, agricultural workers, and those working in grocery stores and fast food chains, and as delivery drivers, are covered by this Executive Order.

As to which employers in the food sector are covered, below is a list as defined by this Executive Order:

1. Private sole proprietorship, or

2. Any kind of private entity whatsoever,

3. Any kind of corporation,

4. Partnership,

5. Limited Liability Company,

6. Limited Liability Partnership, or

7. Any other kind of business enterprise, and

8. Any Delivery Network Company, and

9. Any Transportation Network Company—that has 500 or more employees in the United States.

The COVID-19 Supplemental Paid Sick Leave provides for 80 hours of paid leave to an employee in the food sector who has worked full time or was scheduled to work, on average, at least 40 hours/week in the two weeks preceding the date the food sector worker took his/her leave.

If the food sector worker is not full time employee or was not scheduled to a 40 hours/ week schedule as referenced above, then the amount of paid sick leave the employee would be entitled to would be the following based upon the food sector worker’s schedule:

  • For food sector workers with a normal weekly schedule: the total number of hours the worker is normally scheduled to work for over two weeks; or

  • For food sector workers with a variable number of hours: fourteen times the average number of hours worked each day for or through the employer in the six months prior to the date the food sector worker took paid sick leave. If the food sector worker has worked fewer than six months, this calculation shall instead be made over the entire period of the food sector worker’s employment.

The COVID-19 Supplemental Paid Sick Leave is available to a food sector worker for reasons identified below:

  1. The Food Sector Worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

  2. 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

  3. 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.

This COVID-19 Supplemental Paid Sick Leave shall be compensated at a rate equal to the highest of:

  1. The Food Sector Worker’s regular rate of pay for the Food Sector Worker’s last pay period;

  2. The State minimum wage; or

  3. The local minimum wage to which the Food Sector Worker is entitled.

  4. Notwithstanding the foregoing, in no event shall the employer be required to pay more than $511 per day and $5,110 in the aggregate over the period this Executive Order is in effect.

An employer cannot ask a food sector worker to use other paid sick leave or paid time off prior to or in lieu of using the COVID-19 Supplemental Paid Sick Leave.

The sick leave provided in this Executive Order is an addition to any paid sick leave that may be available to the food sector worker under Labor Code section 246 and it is at the discretion of the employee to determine how many hours of paid sick leave to take.

The employer is not required to provide the COVID-19 Supplemental Paid Sick Leave if it already provides paid leave to be taken for the same reasons and in an amount equal to or greater than the amount the food sector employee would be otherwise be entitled under this Order.

This Executive Order also provides that workers shall be permitted at food facilities to wash their hand every 30 minutes, or as needed, to increase proper sanitation measures.

This Executive Order is enforceable by the Labor Commissioner, various Labor Codes and Business and Professions Code.

For a Copy of this Executive Order can be found here.

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