This week, Cal/OSHA has released new guidance and checklists for Agriculture and Livestock, and for Food Packing and Processing.  This new guidance is intended to support a safe, clean environment for workers in these areas.  The update now mandates a “written worksite specific plan” for these operations to protect workers.  Included in the guidance is information on what is required in the written plan, training topics, individual control measures, cleaning and disinfecting protocols, and physical distancing guidelines.  To assist our members in this area, staff is currently developing a template plan, inspection checklist, training materials and developing a supervisorial training webinar the Association will be conducting in the very near future.

Here are the new Guidance Documents and General Checklists:

• COVID-19 Industry Guidance: Agriculture and Livestock
• Cal/OSHA COVID-19 General Checklist for Agriculture and Livestock Employers
• COVID-19 Industry Guidance: Food Packing and Processing
• Cal/OSHA COVID-19 General Checklist for Meat, Dairy, or Produce Packing or Processing

Stay tuned for more information!

1.  The Executive Order is retroactive to March 19 and extends for 60 days from today’s announcement.
2.  Employees working outside the home that test positive for COVID-19 or are diagnosed positive by a physician or surgeon licensed by the California Medical Board within the time period of the Executive Order are presumed to have contracted the disease at the workplace. If it is a diagnosis, the diagnosis must be confirmed by a positive test within 30 days.
3.  The presumption applies to all employees directed to work outside the home by their employer. It is not limited to essential employees.
4.  The presumption is rebuttable by the employer, however, the time for the employer to deny a claim is reduced from the current 90 days to 30 days.
5.  The rebuttable presumption is in effect for 60 days from May 6, 2020, but coverage continues after the 60 day expiration date.
6.  Temporary disability payments begin only after the employee uses all other state or federal sick leave benefits.
7.  Re-testing is required every 15 days during first 45 days of temporary disability payments.
8.  The Department of Industrial Relations will not require or accept a “no beneficiary” death benefit.

Due to the ongoing situation with COVID-19 and the uncertainty surrounding the end of the “Shelter in Place” order, the Board of Directors of the California Cotton Ginners and Growers has voted unanimously to cancel the 2020 Annual Meeting scheduled for May 13th in Visalia.  The annual financial audit, yearly financials and board actions will be considered at the June 3rd Board Meeting in Fresno.   Details on that meeting will be forthcoming when the COVID-19 crisis eventually comes to a close.

The Association joined several other agricultural organizations in expressing opposition to a potential Governor’s Executive Order to address COVID-19 under workers compensation that could place a massive economic burden on California businesses even in cases where it had nothing to do with work.  We are hearing that Governor Newsom is considering the following:

1) Creating a conclusive presumption – i.e., no ability to dispute that an injury was work related – for anyone deemed “essential” on the attached, very expansive list applying during the COVID-19 response time, including all farm workers, restaurant workers, workers in food processing, workers in transport, laundry services, cannabis shops, and health care workers. This would allow millions of workers in the state of California to get workers’ compensation funds from employers regardless of whether they contracted COVID-19 at work or otherwise.

2) Extending the definition of an injury to “exposure” to COVID-19 even without symptoms or actual illness.  This would create payments from business for individuals with no injury at all.

3) Adding additional costs to business for temporary housing to quarantine workers recommended for quarantine, regardless of actual illness.

4) The ability to have a presumption of injury arise, without any formal testing, if a doctor of any type able to treat in workers’ compensation (chiropractors, orthopedists, podiatrists), concludes someone has COVID-19.  This is very similar to the primary treating presumption that tripled rates for business in the early 2000 period.

Unfortunately, one company, State Compensation Insurance Fund, has already adopted some of these provisions in advance of any directive.  Nonetheless, the Association remains opposed and will continue to fight this and other regulatory burdens being place on the agricultural industry even during these unbelievably critical times.

The Association joined a coalition of 150 organizations representing water and agricultural interests in the western U.S. in urging Congress and President Trump to address aging Western water infrastructure as further measures are considered to help the U.S. economy recover from the ongoing coronavirus crisis.  “The COVID-19 pandemic underscores the importance of safety and stability provided by domestic food production,” the groups stated in separate letters to Congress and the President. “As this crisis has pointed out, a stable domestic food supply is essential and of national security interest. For farmers and ranchers to survive, and for food to continue to be produced here in the American West, a stable water supply is a necessary part of any conversation about our national food security.”  President Trump has stated his belief that renewed efforts to meet the systemic infrastructure demands of the nation will be an important step in combating the long-term impacts of the pandemic.  “We strongly agree,” the organizations stated in the letter to the White House. “In particular, we urge you to advance critically needed investments that address the shortcomings of our aging Western water infrastructure.”  Existing water infrastructure in the West needs rehabilitation and improvement. Most of the federally funded water infrastructure projects that benefit the large cities, rural communities and small farms in the West were built more than 50 years ago. As hydrological conditions in the West change and populations continue to expand, failure to address water security has become increasingly critical.  “Failing to improve water infrastructure and develop supplies will inevitably result in additional conflict as pressure grows to ‘solve’ urban and environmental water shortages,” the groups stated in the letter to Congress. “Moving water away from Western irrigated agriculture will surely contribute to the decline of our national food security.”  The coalition letters emphasize that water conservation, water recycling, watershed management, conveyance, desalination, water transfers, groundwater storage and surface storage are all needed in a diversified management portfolio.

“If and when additional infrastructure funding is discussed as part of a larger economic stimulus package, we need your help to ensure that federal dollars flow to the water infrastructure needs mentioned above,” the letters conclude.

As part of President Trump and Secretary Perdue’s April 17^th announcement of a $19 billion Coronavirus Farm Assistance Program, USDA today announced that it is exercising authority under the Families First Coronavirus Response Act to purchase and distribute up to $3 billion of agricultural products to those in need. USDA will partner with regional and local distributors, whose workforce has been significantly impacted by the closure of many restaurants, hotels, and other food service entities, to purchase $3 billion in fresh produce, dairy, and meat products. USDA’s Agricultural Marketing Service (AMS) will procure an estimated $100 million per month in fresh fruits and vegetables, $100 million per month in a variety of dairy products and $100 million per month in meat products to provide a pre-approved box of fresh produce, dairy, and meat products to food banks and other non-profits serving Americans in need.

USDA will issue a solicitation in the next two weeks to invite proposals from offerors to supply commodity boxes to non-profit organizations, identified by the offeror, on a mutually agreeable, recurring schedule. USDA will award contracts for the purchase of the agricultural products, the assembly of commodity boxes and delivery to identified non-profit organizations that can receive, store and distribute food items.

An informational webinar for interested participants will be held at 2 p.m. EDT on Tuesday, April 21, 2020, to provide an overview of the program and instructions for submitting offers. Register in advance for this webinar here: https://www.zoomgov.com/webinar/register/WN_hDiBdM_aSYmWps0RiO-UAg. If you are unable to participate in the webinar, a recording will be available.

Email questions to USDAFoodBoxDistributionProgram@usda.gov. To receive updates by e-mail, subscribe online by visiting: “Stay up to date on USDA Food Purchases” available on the AMS Commodity Procurement website.

By: Michael C. Saqui, Jennifer M. Schermerhorn, and Rebecca A. Hause-Schultz

At his press conference today, April 16, 2020, Governor Newsom announced Paid Supplemental Sick Leave for essential workers in the food sector. According to the Governor, this Supplemental leave only impacts employers not already covered by the Families First Coronavirus Response Act (“FFCRA”), for example, those with over 500 employees. The Governor described the Supplemental leave as a “gap” filler.
The California Paid Supplemental Sick Leave is two weeks of supplemental paid leave, for workers who have contracted COVID-19 or are under quarantine or isolation orders. The program was apparently developed as an effort with the Governor, John Grant, of UFCW Local 770 and Ron Fong, President and CEO of the California Grocers Association.

Why Can An Employee Take the Supplemental Leave?
The Executive Order, available here, orders that “Food Sector Workers” are entitled to “COVID-19 Supplemental Paid Sick Leave” for any of the following reasons:

1. The Worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
2. The Worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
3. The Worker is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Who is a “Food Sector Worker”?

• The Worker is “Essential” Under the Governor’s Stay at Home Order, leaves home to perform work AND any of the following:

• Any Worker under Wage Order 3 (Canning, Freezing, and Preserving), 8 (Industries Handling Products After Harvest), 13 (Industries Preparing Agricultural Products for Market, on the Farm), or 14 (Agricultural Occupations);
• Any Worker employed by a food facility operator;
• Any worker that delivers food from a food facility

How Many Hours Are Full Time vs. Part Time Employees Entitled to? 
Eligible workers are entitled to 80 hours of COVID-19 Supplemental Paid Leave if:

1. They are “full time” or
2. The Worker worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks before the Worker took COVID-19 Supplemental Paid Sick Leave.

Eligible workers who don’t fit into the “full time” category above for the amount of paid leave as follows:

1. If the Worker has a normal weekly schedule, the total number of hours the Worker is normally scheduled for in a two week period; or
2. If the Worker has variable hours, fourteen times the average number of hours the Worker worked each day in the six months before the COVID-19 Supplemental Paid Sick Leave. If the Worker has worked less than six months, then base the calculation on the entire time the Worker has worked with the employer.

What About Required Paid Sick Leave (PSL) Under Labor Code section 246 (the three-days of PSL)?
This COVID-19 Supplemental Paid leave is in addition to PSL available under Labor Code section 246.

How is the COVID-19 Supplemental Paid Sick Leave Compensated?
The highest of:

• The Worker’s regular rate of pay for the last pay period;
• The State minimum wage;
• The local minimum wage.

There is a CAP of $511 per day and $5,110 in total over the period this Executive Order is in effect.

Can the Employer Require Use of other Paid or Unpaid Leave First?
No. An Employer may not require a Worker to use any other paid or unpaid leave, paid time off, or vacation time before the Worker may use COVID-19 Supplemental Paid Sick Leave.

COUNSEL TO MANAGEMENT:
This is very much a developing story and many questions remain unanswered. We will keep you updated as more guidance becomes available from the Labor Commissioner’s Office. Contact the experts at Dowling Aaron, Saqui Law Group Division, if you have questions about this Executive Order, COVID-19 and your business, or any labor or employment matter.

Governor Gavin Newsom today signed an executive order to support California workers from large employers in the food sector industry impacted by the COVID-19 pandemic with two weeks of paid sick leave, filling a gap left by federal relief that had provided similar paid leave benefits for employers with fewer than 500 workers.  Workers in the food sector, including farmworkers, agricultural workers, and those working in grocery stores and fast food chains, and as delivery drivers, are part of the state’s essential infrastructure workforce, and have continued to work to serve Californians.  Unlike federal law though, there is no tax relief or credit associated with this cost.  The Executive Order applies to Wage Orders 3, 8, 13, and 14, and certain food facilities (such as grocery stores), and those that deliver food to those food facilities.  Additionally, the Executive Order provides health and safety standards to increase worker and customer protection by permitting workers at food facilities to wash their hands every 30 minutes, or as needed, to increase proper sanitation measures.

With the passage of H.R. 748 (CARES Act) by the Federal Government last week, many are scrambling to take advantage of the billions of dollars dedicated to the Paycheck Protection Program (PPP).  The Association has been in contact with our Associate Membership bank representatives to try and narrow down the list of approved lenders for the PPP.  Many of these providers are encouraging businesses to apply for the PPP with their current bank.  Applicants are flooding banks with applications, and many have taken the policy that current members will take priority.  The list provided below are currently approved to administer PPP loans, however, this list will be updated when our other associate-member banks are included into the PPP program.  Please remember to support those that support the Association and the industry.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act was just passed and allocated $350 billion to help small businesses keep workers employed amid the pandemic and economic downturn. Known as the Paycheck Protection Program, the initiative provides 100% federally guaranteed loans to small businesses.   Most importantly, these loans may be forgiven if borrowers maintain their payrolls during the crisis or restore their payrolls afterward.  The Paycheck Protection Program (PPP) is a loan designed to provide a direct incentive for small businesses to keep their workers on the payroll. The Small Business Administration will forgive loans if all employees are kept on the payroll for eight weeks and the money is used for payroll, rent, mortgage interest, or utilities. The Paycheck Protection Program will be available through June 30, 2020.  This program is for any small business with less than 500 employees (including sole proprietorships, independent contractors and self-employed persons), private non-profit organization or 501(c)(19) veterans organizations affected by coronavirus/COVID-19.

For more information, please click on the following:

Summary

Guide

Application