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

Late Saturday, the Department of Homeland Security announced revisions to guidance on Essential/Critical.  The guidance for agriculture and it supply chain has been enhanced.  Below is the ag language, and we have attached the updated guidance.

FOOD AND AGRICULTURE

• Workers supporting groceries, pharmacies, convenience stores, and other retail (including unattended and vending) that sells human food, animal/pet food and pet supply, and beverage products, including retail customer support service and information technology support staff necessary for online orders, pickup and delivery.
• Restaurant carry-out and quick serve food operations, including dark kitchen and food prep centers, and carry- out and delivery food employees.
• Food manufacturer employees and their supplier employees—to include those employed in food ingredient production and processing facilities; livestock, poultry, seafood slaughter facilities; pet and animal feed processing facilities; human food facilities producing by-products for animal food; beverage production facilities; and the production of food packaging.
• Farmers, farm workers, and agribusiness support services to include those employed in auction and sales: grain and oilseed handling, processing and distribution; animal food, feed, and ingredient production, packaging, and distribution; manufacturing, packaging, and distribution of veterinary drugs; truck delivery and transport; farm and fishery labor needed to produce our food supply domestically and for export.
• Farmers, farm workers, support service workers, and their supplier employees to include those engaged in producing and harvesting field crops; commodity inspection; fuel ethanol facilities; biodiesel and renewable diesel facilities; storage facilities; and other agricultural inputs.
• Employees and firms supporting the distribution of food, feed, and beverage and ingredients used in these products, including warehouse workers, vendor- managed inventory controllers and blockchain managers.
• Workers supporting the sanitation and pest control of all food manufacturing processes and operations from wholesale to retail.
• Employees in cafeterias used to feed employees, particularly employee populations sheltered against COVID-19.
• Workers in animal diagnostic and food testing laboratories in private industries and in institutions of higher education.
• Government, private, and non-governmental organizations’ workers essential for food assistance programs (including school lunch programs) and government payments.
• Employees of companies engaged in the production, storage, transport, and distribution of chemicals, medicines, vaccines, and other substances used by the food and agriculture industry, including seeds, pesticides, herbicides, fertilizers, minerals, enrichments, and other agricultural production aids.
• Animal agriculture workers to include those employed in veterinary health (including those involved in supporting emergency veterinary or livestock services); raising of animals for food; animal production operations; livestock markets; slaughter and packing plants, manufacturers, renderers, and associated regulatory and government workforce.
• Transportation supporting animal agricultural industries, including movement of animal medical and reproductive supplies and materials, animal vaccines, animal drugs, feed ingredients, feed, and bedding, live animals, animal by-products, and deceased animals for disposal.
• Workers who support sawmills and the manufacture and distribution of fiber and forest products, including, but not limited to timber, paper, and other wood and fiber products.

Employees engaged in the manufacture and maintenance of equipment and other infrastructure necessary for agricultural production and distribution.

Click here for updated guidance.

As we have previously noted, the Families First Coronavirus Response Act (FFCRA) requires a poster for all employees of the employer’s obligation to provide their employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply from April 1, 2020 through December 31, 2020.  The Spanish poster is now available and attached. Please post immediately.

Click here for Spanish poster

As we have previously noted, the Families First Coronavirus Response Act (FFCRA) requires a poster for all employees of the employer’s obligation to provide their employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply from April 1, 2020 through December 31, 2020.  The poster is now available and attached. Please post immediately.

Click Here For Poster

Recently, Congress passed and the President signed the Families First Coronavirus Response Act for those impacted by COVID-19.  This Act imposes emergency paid sick leave and family medical leave requirements on employers from April 2, 2020 until December 31, 2020.   The U.S. Department of Labor’s Wage and Hour Division (WHD) recently announced its first round of published guidance to provide information to employees and employers about how each will be able to take advantage of the protections and relief offered by the Families First Coronavirus Response Act (FFCRA) when it takes effect on April 1, 2020.  The FFCRA will give all American businesses with fewer than 500 employees, funds to provide employees with paid leave, either for the employee’s own health needs or to care for family members.  The guidance – provided in a Fact Sheet for Employees, a Fact Sheet for Employers and a Questions and Answers document – addresses critical questions, such as how an employer must count the number of their employees to determine coverage; how small businesses can obtain an exemption; how to count hours for part-time employees; and how to calculate the wages employees are entitled to under this law.   There is also a workplace poster required for most employers that will be published later this week, along with additional fact sheets and more Q&A.

Recently, Congress passed and the President signed the Families First Coronavirus Response Act for those impacted by COVID-19.  This Act imposes emergency paid sick leave and family medical leave requirements on employers from April 2, 2020 until December 31, 2020.  Attached is a summary of the Act and its requirements that you as employers need to be aware of. Click here for the link.

• How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce when an influenza pandemic appears imminent?
• When may an ADA-covered employer take the body temperature of employees during a pandemic?
• Does the ADA allow employers to require employees to stay home if they have symptoms of the pandemic influenza virus?
• When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?