On April 16, 2020, California Governor Gavin Newsom signed an executive order requiring employers to provide up to 80 hours of COVID-19 Supplemental Paid Sick Leave for food sector workers.  The executive order is effective immediately and extends paid sick leave requirements to cover not only employees, but also independent contractors working in the food sector.

Covered employers

The executive order applies to “hiring entities,” defined as private companies that have 500 or more employees in the United States.  It specifically includes any “Delivery Network Company” (a business entity that maintains an internet website or mobile application used to facilitate delivery services for the sale of local products) and “Transportation Network Company” (an organization operating in California that provides prearranged transportation services for compensation using an online-enabled application or platform to connect passengers with drivers using a personal vehicle).

Eligible workers

To be eligible for the new COVID-19 Supplemental Paid Sick Leave, the food sector worker must be exempt from any stay-at-home order and leave their home or place of residence to perform work for a hiring entity.  The Executive Order defines a “food sector worker” as:

  • A person who works in one of the industries or occupations defined in Industrial Welfare Commission Wage Orders 3 (Canning, Freezing, and Preserving Industry), 8 (Industries Handling Products After Harvest), 13 (Industries Preparing Agricultural Products for Market, on the Farm), or 14 (Agricultural Occupations); or
  • A person who works for a hiring entity that operates a food facility, as defined in Health and Safety Code section 113789(a)-(b), such as a restaurant, farm stand, or food truck; or
  • A person who delivers food from a food facility for or through a hiring entity.

Importantly, while California’s general mandatory paid sick leave requirement applies only to employees, the executive order’s definition of eligible workers would include workers potentially classified as independent contractors.

Broad applicability

Governor Newsom made clear at his April 16, 2020 briefing that the executive order is meant to provide relief to food sector workers who cannot afford to stay at home when they are ill.  Thus, unlike the federal Families First Coronavirus Relief Act (FFCRA), which has six qualifying reasons, California’s COVID-19 Supplemental Paid Sick Leave does not include caring for a child whose school or place of care is closed, or caring for an individual for COVID-19-related reasons.  Rather, the qualifying reasons for taking COVID-19 Supplemental Paid Sick Leave are limited to circumstances where food sector workers cannot work because they are:

  1. Subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
  3. Prohibited from working by the food sector worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

Under the executive order, employers cannot require that workers exhaust other earned sick leave, vacation time, or compensatory time before applying COVID-19 Supplemental Paid Sick Leave time.  Employers that have policies that are equal to or more generous than the requirements of the executive order are exempt.

Employers with food sector workers in California should contact their Reed Smith Labor and Employment attorneys to discuss the impacts and implications of the executive order.