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April 2020

California’s Executive Order N-51-20 Creating COVID-19 Supplemental Paid Sick Leave

April 20, 2020

Effective April 16, 2020, any Hiring Entity, which is a private entity (including a Delivery Network Company or Transportation Network Company) with 500 or more employees in the United States, must provide paid sick leave for COVID-19 related reasons to Food Sector Workers.

Who is a Food Sector Worker?

  • An employee who works in these industries:
  1. Canning, freezing and preserving soups or cooking, canning, curing, freezing, pickling, salting, bottling, preserving, or otherwise processing any fruits or vegetables, seafood, meat, poultry or rabbit product, when the purpose of such processing is the preservation of the product and includes all operations incidental thereto[1]; or
     
  2. Handling products after harvest including grading, sorting, cleaning, drying, cooling, icing, packing, dehydrating, cracking, shelling, candling, separating, slaughtering, picking, plucking, shucking, pasteurizing, fermenting, ripening, molding, or otherwise preparing any agricultural, horticultural, egg, poultry, meat, seafood, rabbit, or dairy product for distribution, and includes all the operations incidental thereto[2]; or
     
  3. Operation performed in a permanently fixed structure or establishment on the farm or on a moving packing plant on the farm for the purpose of preparing agricultural, horticultural, egg, poultry, meat, seafood, rabbit, or dairy products for market when such operations are done on the premises owned or operated by the same employer who produced the products referred to herein and includes all operations incidental thereto[3]; or
     
  4. Agriculture, including:
    1. The preparation, care, and treatment of farm land, pipeline, or ditches, including leveling for agricultural purposes, plowing, discing, and fertilizing the soil;
    2. The sowing and planting of any agricultural or horticultural commodity;
    3. The cultivation, irrigation, weed control, thinning, heating, pruning, or tying, fumigating, spraying, and dusting of any agricultural or horticultural commodity;
    4. The harvesting of any agricultural or horticultural commodity, including but not limited to, picking, cutting, threshing, mowing, knocking off, field chopping, bunching, baling, balling, field packing, and placing in field containers or in the vehicle in which the commodity will be hauled, and transportation on the farm or to a place of first processing or distribution;
    5. The assembly and storage of any agricultural or horticultural commodity, including but not limited to, loading, road siding, banking, stacking, binding, and piling;
    6. The raising, feeding and management of livestock, fur bearing animals, poultry, fish, mollusks, and insects, including but not limited to herding, housing, hatching, milking, shearing, handling eggs, and extracting honey;
    7. The harvesting of fish, as defined by Section 45 of the Fish and Game Code, for commercial sale; or
    8. The conservation, improvement or maintenance of such farm and its tools and equipment[4].
  • An employee of a food facility that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, including (1) an operation where food is consumed regardless of whether there is a charge for the food; and (2) a place used for operation of a food facility including storage facilities for food-related utensils, equipment, and materials and the following:
  1. Public and private school cafeterias;
  2. Restricted food service facilities;
  3. Licensed health care facilities, except intermediate care facility of six beds or fewer;
  4. Commissaries;
  5. Mobile food facilities;
  6. Mobile support units;
  7. Temporary food facilities;
  8. Vending machines;
  9. Certified farmers' markets;
  10. Farm stands;
  11. Fishermen's markets;
  12. Microenterprise home kitchen operations;
  13. Catering operation;
  14. Host facility.
  • An employee who delivers food from a food facility (as defined above).

and

  • The worker is exempt as an Essential Critical Infrastructure worker from the requirements of the Statewide Stay at Home Order; and
  • The person leaves home or residence to perform work for or through the Hiring Entity.

When is the Employee Eligible?

The Food Sector Worker Must be unable to work because he/she is:

  1. Subject to a Federal, State, or local quarantine or isolation order related to COVID-19[5]; or
     
  2. Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
     
  3. Is prohibited from working by the Food Sector Worker’s Hiring Entity due to health concerns related to the potential transmission of COVID-19.

How Many Hours are Available?

  • Full Time Employees: 80 hours
     
  • Part Time Employees: Average number of hours worked over a two week period.  If the employee’s schedule varies, use a six month average to calculate average daily hours.
     
  • For Varying Schedules: Total number of hours normally scheduled to work over two weeks or 14 times the average number of hours worked each day in the six months preceding the date of leave or over the entire period of employment if less than six months.

How Much to Pay?

Employees must be paid based on their regular rate of pay as of the last pay period but no less than minimum wage, subject to a limit of: $511 per day and $5,110 in the aggregate.

How is Sick Leave Requested and Used?

A Food Sector Worker makes an oral or written request and the leave shall be made available for immediate use. The Worker decides how many hours of sick leave to use, up to the available number of hours. The employer cannot require the worker use pre-existing CA Paid Sick Leave, employer provided sick leave or PTO before using COVID-19 Supplemental Paid Sick Leave. The Order does not require employers automatically provide this leave.  From the text of the order it is reasonable to require an employee to request the leave and qualify for the leave before providing it. 

What Documentation is Required?

The Order is silent as to required documentation.  The language of this Order is modeled after portions of the Emergency Paid Sick Leave (EPSL) section of the Families First Coronavirus Response Act (FFCRA), which is also silent as to required documentation.  There is guidance from the Department of Labor as to the FFCRA which suggests that employers can request the name of the health care provider who issues the quarantine order as addressed in Reason 2 above.  If an employee already has a doctor’s note you may request is be provided to you but we do not suggest you condition payment of leave on receipt of such a note.

For How Long is The Order Effective and Is Paid Sick Leave Paid Out on Termination?

The requirement to provide leave ends when California’s Statewide Stay at Home Order ends except if a Food Sector Worker is on paid sick leave at that time, the employee shall take the full amount of leave to which that employee is entitled.  There is no provision that this sick leave is due upon an employee’s termination.

How Are Employees Notified?

By April 23, 2020, the Labor Commissioner will make available a model notice which must be displayed in a conspicuous place, or if the Food Sector Workers do not frequent a workplace, the notice must be transmitted through electronic means.

Visit our COVID-19 Hub for ongoing updates.


[1] IWC 3-2001 §2(B);

[2] IWC 8-2001 §2(H)

[3] IWC 13-2001 §2(h)

[4] IWC 14-2001 §2(D)

[5] This would include any governmental directive requiring residents to stay at home.  Note that these orders exempt workers for essential businesses.  Many of the industries which qualify an employee as a Food Sector Worker are considered essential, however, if one is not, then an employee may be entitled to leave if subject to a stay at home order.

COVID-19 Task Force

Talia L. Delanoy


COVID-19 Task Force
Employment Law