Farm To Fork Workers Get Paid Sick Leave

Employers with less than 500 employees have been wading through the intricacies of the federal Families First Coronavirus Response Act (“FFCRA”) that provides paid sick leave to employees of those companies.  According to Executive Order N-51-20 (the “Order”) issued by Governor Newsom, the FFCRA does not go far enough to protect workers who grow and harvest food, work in food facilities, and deliver food from food facilities. 

The Order, issued April 16, 2020, applies exclusively to employers with 500 or more employees.  The Order specifically identifies that “food sector workers” who are sick are more likely to go to work if they do not have paid leave.  This COVID-19 Supplemental Paid Sick Leave is in addition to the paid sick leave that California employers are already required to pay. 

The first definition of food sector workers is based on the applicable Wage Order(s) of the Industrial Welfare Commission:  Wage Order 3-2001 (canning, freezing and preserving industry); Wage Order 4-2001 (professional, technical, clerical, mechanical and similar occupations); Wage Order 8-2001 (handling products after harvest industry); Wage Order 13-2001 (preparing agricultural products for market, on the farm industry); and Wage Order 14-2001 (agricultural occupations). 

A second category of food sector workers includes those who work at a food facility, defined as an operation that stores, prepares, packages, serves, vends or otherwise provides food for human consumption at the retail level, as well as some specifically identified permanent and nonpermanent food facilities too expansive to list.  The final category of food sector workers includes those who deliver food from a food facility. 

The following summarizes leave under the Order: 

Use for:          

Employees may use if subject to a quarantine or isolation order, if advised by a health care provider to self-quarantine/isolate or if prohibited from working due to COVID-19.

Amount:          80 hours for full-time employees, prorated for part-time workers.
Hourly rate:   

Highest of the worker’s regular rate of pay, the state minimum wage or a local minimum wage, capped at $511 per day or $5,110 for the entire leave.

Caps:   

Employers who already provide paid leave for COVID-19 related illness covered by the Order equal to or in excess of the amount required need not comply.

Enforcement: The Labor Commissioner will enforce the Order, including retaliation claims, consistent with California’s already existing paid sick leave requirements.
Duration:

The Order is effective during any statewide stay-at-home order issued by the State Public Health Officer.  Further protection is given to workers who are taking the leave when those stay-at-home orders expire by allowing them to use the remainder of their leave.

 

Finally, the Order strengthens existing handwashing requirements for employees working in any food facility.  Those stringent requirements have long existed to prevent the spread of food-borne illness.  In addition, those employees are now “permitted” to wash their hands every 30 minutes or more, as needed.   

Help for employers is on the way in that the Order requires the Labor Commissioner to make publicly available a model notice that can be posted at the workplace or delivered electronically to employees who do not report to a workplace.  Nothing, however, substitutes for receiving tailor-made legal advice from your trusted attorney at AALRR.

This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

© 2020 Atkinson, Andelson, Loya, Ruud & Romo

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