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.