It shouldn’t surprise anyone that a massive component of California’s economy is and has been agriculture and food service, including farming, canning, processing, and of course, restaurants. Given the size and scope of these industries in and across California, on April 16, 2020, Governor Newsom signed Executive Order N-51-20, expanding employee protections for Food Service Workers during the COVID-19 pandemic.
The additional protections are largely consistent with the Families First Coronavirus Response Act (“FFCRA”), except they apply to workers at employers who employ 500 or more employees (instead of fewer than 500 employees, like the FFCRA). Eligible workers include employees who work in the following: the canning, freezing, and preserving Industry; industries handling products after harvest; industries preparing agricultural products for market on the farm; agricultural occupations; food facilities (broadly defined under Health and Safety Code section 113789(a)-(b) to include any operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, regardless if food is consumed on or off the premises); or delivery from a food facility.
Under the Executive Order, eligible workers are entitled to two weeks of supplemental paid sick leave, calculated based on the number of hours the employee works (with limited exception). The supplemental paid leave must be offered in addition to other paid sick leave mandated by the State, and employers cannot require the use of paid time off, other unpaid leave, vacation, or other benefits before or in lieu of the supplemental paid sick leave. The leave must be made “immediately available” on written or oral notice by the employee, so no documentation is required. Supplemental paid leave under the Executive Order must be paid at the greater of: (1) the employee’s regular rate; (2) the state minimum wage; or (3) the applicable local minimum wage. Payments may be capped at $511 per day, and $5,110 in the aggregate. The one caveat is an employer need not comply if it already provides for equivalent or greater paid leave for the same qualifying reasons authorized by the Executive Order.
Eligible workers must work in one of the covered industries identified above, must qualify as an Essential Critical Infrastructure Worker (defined in pertinent part as workers in the “supply chains for feed, animals, and animal products; crop production and the supply chains of seed, fertilizer, and other necessary related materials; and the post-harvesting components of the food supply chain, from processing, production, and packaging through storage and distribution to retail sales, institutional food services, and restaurant or home consumption”); and must leave their residence to perform work. Qualifying reasons to take supplemental paid sick leave are limited to: (1) when the worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) when a healthcare provider advises the employee to self-quarantine or self-isolate due to concerns related to COVID-19; or when the employer prohibits the employee from working due to health concerns related to the potential transmission of COVID-19.
Employers are required to post a notice for employees in a conspicuous place. Where employees do not regularly report to a work site, notice may be effected by electronic means, i.e. email. The notice is available here.
Employees Must Wash Hands!
Lastly, Governor Newsom slipped in one additional requirement. Regardless of the size of the employer, all employees at food facilities “shall be permitted” to wash their hands every 30 minutes, and additionally as needed. In many instances, employees may already wash their hands more frequently. But if that is not the practice, employers should ensure they have hand-washing facilities available, and that managers/supervisors are aware of the requirement and are enabling employees to wash their hands at least every 30 minutes.
This is of course only one of many Executive Orders, laws, and administrative mandates that has been enacted since COVID-19 began. For more information and to stay up to date, make sure to visit Fox Rothschild’s Coronavirus Resources Page.