FAQs on Executive Order Concerning Supplemental Paid Sick Leave for Food Sector Workers at Companies with 500 or More Employees

  1. What does Executive Order N-51-20 do?
  2. The Executive Order provides supplemental paid sick leave (“COVID-19 Supplemental Paid Sick Leave”) for food sector workers who work for a hiring entity that has 500 or more employees nationwide for certain circumstances related to COVID-19. The type of food sector workers the Executive Order covers ranges from farmworkers to those workers who work in the retail food supply chain, including pick-up, delivery, supply, packaging, retail, or preparation. Eligible workers thus include grocery workers, restaurant or fast food workers, workers at warehouses where food is stored, and workers who pick-up or deliver any food items.

  3. What are the circumstances that allow a food sector worker who works for a business that has 500 or more employees nationwide to take COVID-19 Supplemental Paid Sick Leave?
  4. The food sector worker must be unable to work due to one of the following reasons:

    • The worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
    • The worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
    • The worker is prohibited from working by the worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.
  5. Is a food sector worker eligible for COVID-19 Supplemental Paid Sick Leave if someone with whom the worker lives is exposed, experiences symptoms, or is diagnosed with COVID-19?
  6. If a quarantine or isolation order or a medical professional recommends or a hiring entity requires the food sector worker to stay home, then a worker is eligible for COVID-19 Supplemental Paid Sick Leave.

  7. Does being subject to a general stay-at-home order mean that a food sector worker is "subject to a Federal, State, or local quarantine or isolation order related to COVID-19" under the Executive Order?
  8. No. Essential critical infrastructure workers, including Food Sector Workers, are permitted to continue their work under the state’s stay-at home order. When Paragraph 1 of the Executive Order refers to "quarantine or isolation order," it means a quarantine or isolation order that is specific to the worker’s circumstances, not a general stay-at-home order. For example, an order that directs individuals who live with someone who has COVID-19 to quarantine themselves would satisfy Paragraph 1.

  9. In the absence of any information that a worker is not requesting COVID-19 Supplemental Paid Sick Leave for a valid purpose, can a hiring entity require certification from a health care provider before allowing a worker to take the leave?

    No.  A hiring entity may not deny a worker COVID-19 Supplemental Paid Sick Leave based solely on a lack of certification from a healthcare provider.  Under the Executive Order, a food sector worker is entitled to take COVID-19 Supplemental Paid Sick Leave immediately upon the worker’s oral or written request.  The Executive Order does not condition leave on medical certification. 

    Although a hiring entity cannot deny COVID-19 Supplemental Paid Sick Leave solely for lack of certification, it may be reasonable in certain circumstances to ask for documentation before paying the sick leave when the hiring entity has other information indicating that the worker is not requesting COVID-19 Supplemental Paid Sick leave for a valid purpose.  In any such claim the reasonableness of the parties’ actions will undoubtedly come into play. For example, if a worker informs a hiring entity that the worker is subject to a local quarantine order, has to stay home, and qualifies for COVID-19 supplemental paid sick leave, but the hiring entity subsequently learns that the worker was at a park, the hiring entity could reasonably request documentation.

  10. Do only employees of hiring entities have the right to COVID-19 Supplemental Paid Sick Leave?
  11. No. If a hiring entity has more than 500 employees nationwide, then the Executive Order on Supplemental Paid Sick Leave applies to all food sector workers who perform work for or through the hiring entity, regardless of whether they are deemed employees of the hiring entity.

  12. Doesn’t the federal Families First Coronavirus Response Act (FFCRA) provide paid sick leave to workers who work for businesses with 500 or more employees for certain COVID-19 related reasons?
  13. No. FFCRA does not cover all workers, nor does it cover businesses with 500 or more employees. The Executive Order is intended to help fill the gap for essential food sector workers.

  14. Which food sector workers qualify for COVID-19 Supplemental Paid Sick Leave under the Executive Order?
  15. To qualify for COVID-19 Supplemental Paid Sick Leave, the food sector worker must perform work for or through a hiring entity with more than 500 employees nationwide and:

    1. be exempt from the Stay-at-Home Order (EO N-33-20);
    2. perform work for the business outside the home; and
    3. satisfy one of the following:
      1. Work in one of the industries or occupations defined in Industrial Welfare Commission (“IWC”) Wage Order 3-2001 § 2(B) (the canning, freezing, and preserving industry); IWC Wage Order 8-2001 § 2(H) (industries processing agricultural products after harvest); IWC Wage Order 13-2001 § 2(H) (facilities on a farm that prepare products for market); or IWC Wage Order 14-2001 § 2(D) (general agricultural occupations);
      2. Work for a business that runs a food facility, which includes grocery stores, fast-food restaurants, and distribution centers; or
      3. Deliver food from a food facility for or through a hiring entity.
  16. How do I know if a hiring entity has 500 or more employees nationwide?
  17. A business will count employees the same way as in the Families First Coronavirus Response Act pursuant to 29 C.F.R. § 826.40.

  18. Are public employers subject to this Executive Order?
  19. No. The Families First Coronavirus Response Act already covers public employers.

  20. How much COVID-19 Supplemental Paid Sick Leave is a full-time food sector worker entitled to?
  21. A food sector worker who is considered full-time or who worked or was scheduled to work an average of at least 40 hours per week in the two weeks before the leave is taken is entitled to 80 hours of COVID-19 Supplemental Paid Sick Leave.

  22. How do you calculate the leave entitlement for a part-time food sector worker who does not have a set schedule?
  23. Paragraph 1(b)(ii)(2) of the Executive Order specifies how to calculate the leave entitlement for part-time food sector workers who work variable hours and do not have a set schedule.  Below are the two methods to calculate the entitlement for such food sector workers. 

    Part-Time Workers with Variable Schedules Who Have Worked For or Through a Hiring Entity Over a Period of More Than 14 Days.  For such a part-time worker who works variable hours, the worker may take fourteen times the average number of hours the worker worked each day for or through the hiring entity in the six months preceding the date the food sector worker took COVID-19 Supplemental Paid Sick Leave.  If the part-time worker has worked for the hiring entity for fewer than six months, this calculation would be done over the entire period that the worker has worked for the hiring entity.  If the variable schedule calculation results in an average work schedule of at least 40 hours per week, the variable-scheduled worker would be considered full time and entitled to 80 hours of leave under the Executive Order because the Executive Order requires the hiring entity to pay 80 hours of COVID-19 Supplemental Paid Sick Leave to a worker it properly considers full time, but does not require payment for more than 80 hours.

    In calculating the average number of hours worked by a part-time worker with a variable schedule over the past six months, the figure is determined based on the total number of days in the 6-month period, not just the number of days worked.  Below is an example using a 6-month period that contains a total of 182 days (26 weeks):

    Total Number of Hours Worked During 6-Month Period

    520 hours

    Total Number of Days in 6-Month Period

    182 days

    Average Number of Hours Worked Each Day in 6-Month Period

    520 hours ÷ 182 days =
    2.857 hours

    COVID-19 Supplemental Paid Sick Leave Entitlement

    2.857 x 14 = 40 hours

    Part-Time Workers with Variable Schedules Who Have Worked For or Through a Hiring Entity Over a Period of 14 Days or Fewer.  A food sector worker who is newly working for or through a hiring entity (i.e., connected to the hiring entity for 14 days or fewer) and works variable hours will be entitled to the number of COVID-19 Supplemental Paid Sick Leave hours that they have worked in the preceding two weeks.

    Below is an example of the calculation where such a new worker has worked for a total of two days—one day for 1 hour and a second day for 6 hours over the past two weeks:

    Total Number of Hours Worked During the Two Week Period

    7 hours

    Total Number of Days in a Two-Week Period

    14 days

    Average Number of Hours Worked Each Day in the Two-Week Period

    7 hours ÷ 14 days =
    .5 hours

    COVID-19 Supplemental Paid Sick Leave Entitlement

    .5 hours * 14 = 7 hours

  24. How much does a food sector worker who qualifies for the COVID-19 Supplemental Paid Sick Leave get paid?
  25. The food sector worker is entitled to the highest of the following:

    • The worker’s regular rate of pay for the last pay period;
    • the State minimum wage; or
    • the local minimum wage.
  26. Is there a ceiling on how much a food sector worker must be compensated when taking COVID-19 Supplemental Paid Sick Leave?
  27. Yes. A hiring entity is not required to pay more than $511 per day and $5,110 in the aggregate to a food sector worker for COVID-19 Supplemental Paid Sick Leave taken by the worker.

  28. Where can a food sector worker file a claim if the worker was not allowed to use or was not paid for COVID-19 Supplemental Paid Sick Leave?
  29. The food sector worker may file a claim or a report of a labor law violation with the Labor Commissioner’s Office, the state agency charged in the Executive Order with enforcement.

  30. What if a worker has been denied emergency paid sick leave provided under the federal Families First Coronavirus Response Act?
  31. The worker should file a claim with the United States Department of Labor, a federal agency.
    https://www.dol.gov/agencies/whd/contact/complaints

  32. What rights does a worker have if the worker suffers retaliation, like getting fired, for using paid sick leave under local, state or federal law?
  33. The Executive Order provides that workers using or attempting to exercise their rights to COVID-19 Supplemental Paid Sick Leave are protected from retaliation under Labor Code section 246.5(c). In addition, other labor laws enforced by the Labor Commissioner may protect workers from retaliation in this situation. Workers should seek assistance from the Labor Commissioner’s Office if they have questions about retaliation or want to file a retaliation complaint.

  34. When does a hiring entity have to make the COVID-19 Supplemental Paid Sick Leave available to a food sector worker?
  35. Immediately upon the oral or written request of the worker to the hiring entity.

  36. When is a hiring entity entitled to the exemption described in paragraph 4 of the Executive Order? 

    To qualify for the exemption specified in paragraph 4 of the Executive Order, a hiring entity must have had an existing supplemental paid benefit program as of April 16, 2020 that paid a worker at a rate equal to or greater than what the worker is entitled to under the Executive Order and for the reasons listed in paragraph 1(a) of the Executive Order. Policies that do not meet the requirements of the Executive Order—including those that partially, but do not fully, replace a worker’s pay (up to $511 per week); which provide fewer hours of leave than the Executive Order; or that do not provide a paid benefit for COVID-19-related reasons—do not meet the criteria for the exemption. Employers can of course provide greater benefits to their workers.

  37. Can a hiring entity count the COVID-19-related supplemental paid sick leave it provides under a local paid sick leave ordinance toward the Executive Order’s requirements?

    Yes. For example, if a hiring entity provides a full-time food sector worker 40 hours of COVID-19-related supplemental paid sick leave pursuant to a local ordinance, those 40 hours would count toward the hiring entity’s obligations under the Executive Order so long as the leave provided is for a reason listed in paragraph 1(a) of the Executive Order and is at least at the same rate of pay as the Executive Order requires.

  38. If a local law requires COVID-19 supplemental paid sick leave to be a paid at a rate different from that required under the Executive Order, which rate must a hiring entity use?

    The Executive Order sets minimum requirements for COVID-19 supplemental paid sick leave and does not override local requirements for such leave. (See EO N-51-20 ¶ 5(c) [incorporating Lab. Code § 249]). Thus, if a hiring entity must provide COVID-19-related supplemental paid sick leave pursuant to a local law (and intends for that sick leave to count toward the Executive Order’s requirements), the hiring entity must provide leave at a rate of pay that would ensure compliance with both the local law and the Executive Order, which would be the higher of the rates required under the two laws. If an employer is uncertain as to how to calculate pay under a local ordinance, the employer should contact the relevant local jurisdiction for guidance. 

  39. Can a hiring entity use state disability insurance (SDI) to meet its obligation to provide COVID-19 Supplemental Paid Sick Leave?

    No. Hiring entities subject to the COVID-19 supplemental paid sick leave executive order cannot require food sector workers to use SDI before or in lieu of COVID-19 Supplemental Paid Sick Leave.  The executive order states: “A Hiring Entity may not require a Food Sector Worker to use any other paid or unpaid leave, paid time-off, or vacation time provided by the Hiring Entity to the Food Sector Worker before the Food Sector Worker uses COVID-19 Supplemental Paid Sick Leave, or in lieu of COVID-10 Supplemental Paid Sick Leave.”

    A food sector worker may apply, however, for SDI after taking the COVID-19 Supplemental Paid Sick Leave to which the worker is entitled. The Employment Development Department administers SDI, which provides benefits that are approximately 60-70 percent of wages for eligible employees who are unable to work because they are sick or subject to an isolation or quarantine order. More information is available here.

  40. When are food sector workers entitled to COVID-19 Supplemental Paid Sick Leave?

    The Executive Order is effective immediately, and remains effective for the duration of any statewide stay-at-home order. A food sector worker taking COVID-19 Supplemental Paid Sick Leave when any such order expires can take the full amount of leave that the worker is entitled to under the Executive Order.

  41. What notice must hiring entities provide to food sector workers about COVID-19 Supplemental Paid Sick Leave?
  42. Under the Executive Order, hiring entities are required under Labor Code section 247 to display a poster in a conspicuous place that contains information about COVID-19 Supplemental Paid Sick Leave. If a hiring entity’s food sector workers do not frequent a workplace, the hiring entity may satisfy the notice requirement by disseminating notice through electronic means. The Labor Commissioner will provide additional guidance on notice requirements by April 23, 2020.

  43. What rights do food sector workers have to wash their hands under this Executive Order?
  44. Any operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level must permit workers to wash their hands every 30 minutes and additionally as needed. This will be enforced by local public health agencies.

June 2020