On 16 April 2020, California Governor Gavin Newsom signed an executive order requiring employers in the food sector to provide employees with paid sick leave due to COVID-19 and permit employees working in a food facility to wash their hands at least once every 30 minutes. This order is effective immediately and will last for the duration of California’s stay-at-home order.
The purpose of the order is to help reduce the spread of COVID-19 by providing food sector employees incentive (in the form of paid sick days) to call out from work if they have or potentially have COVID-19. As food sector employees work directly with members of the public and the food supply, there is a heightened risk of transmittal if such employees are infected.
Supplemental paid sick leave due to COVID-19
Private companies with 500 or more employees within the United States are required to provide supplemental paid sick leave to their California employees as outlined below. (The order only impacts California employees, but in determining the size of the employer, all employees throughout the United States are counted.) Importantly, this leave is in addition to any other legally required paid sick leave. Eligible employers may not require employees to use any other paid or unpaid leave, paid time off, or vacation time before or in lieu of this paid sick leave.
Employers with less than 500 employees in the United States will not be required to provide sick leave to their California employees beyond what is already required under state or federal law. The order also does not apply to companies with a pre-existing policy that permits employees to take leave for the reasons authorized by the order and provides an equal or greater amount of compensation than the worker would be entitled to under the order.
The order only applies to food sector workers who work for an organisation that operates in one of the qualifying industries or occupations listed below, qualify as Essential Critical Infrastructure workers (as defined in the governor’s 19 March ‘Shelter in Place’ Order), and leave their residence to perform work.
Qualifying industries or occupations include:
Supplemental paid sick leave must be provided for the following reasons:
Eligible full-time employees are entitled to 80 hours of paid sick leave. All other employees are entitled to the total number of hours they are normally scheduled to work over two weeks. Leave is paid out at the employee’s regular rate of pay in the prior pay period, the state minimum wage, or any applicable local minimum wage, whichever is highest. However, pay is capped at USD 511 per day and USD 5,110 total per employee.
No formal documentation is required for employees to take this leave. Employers must provide the paid sick leave for immediate use upon either an oral or written request from the employee.
Employees claiming a violation of the paid leave order may file a complaint with the labour commissioner for reinstatement, any supplemental leave unlawfully withheld, penalties, and attorney fees.
The labour commissioner must provide a model notice for employees. Also, the order appears to require that all employers with over 500 employees, regardless of industry, must post the notice or distribute it via email.
In addition to paid sick leave, the governor’s order also permits employees working in a food facility to wash their hands every 30 minutes and additionally as needed. This requirement applies to all California employers, even those with less than 500 employees. (Note that certain localities, including the City of Los Angeles and San Diego County, have implemented orders providing greater worker protections.)
It is recommended that eligible employers: