California Continues to Fill in the Gaps Left by the Families First Coronavirus Response Act

On April 16, 2020, California Governor Gavin Newsom issued Executive Order N-51-20 (the “Order”).  Similar to laws recently enacted by local California jurisdictions, the Order entitles certain workers to paid leave for reasons related to COVID-19 who are otherwise ineligible for such paid leave under the Families First Coronavirus Response Act (“FFCRA”).

As discussed here, FFCRA requires employers to provide employees with up to 80 hours of paid leave for reasons related to COVID-19.  Notably, however, FFCRA excludes from its scope employees working for employers with 500 or more employees.

Since FFCRA’s enactment, numerous local jurisdictions have passed ordinances attempting to fill the gap left by FFCRA by requiring employers with 500 or more employees to provide paid leave for reasons related to COVID-19.  This includes the cities of San Francisco, San Jose, and Los Angeles.

While similar to those ordinances, the Order issued by Governor Newsom is different in that it applies to “Food Sector Workers” and “Hiring Entities.”  Specifically, it provides that Hiring Entities are required to provide Food Sector Workers with up to 80 hours of paid sick leave (“COVID-19 Supplemental Paid Sick Leave”) to the extent the workers are unable to work for any of the following reasons:

• They are subject to a federal, state, or local quarantine or isolation order related to COVID-19;
• They are advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
• They are prohibited from working by the Food Sector Worker’s Hiring Entity due to health concerns related to the potential transmission of COVID-19.

The Order defines Food Sector Workers as persons (1) working in certain food sectors, including farm workers, grocery workers, and food delivery workers, (2) who are exempt from the requirements of other local or statewide shelter-in-place orders, and (3) who leave their homes or places of residence to perform work for or through the person’s Hiring Entity.  The Order defines “Hiring Entity” as any kind of private entity that has 500 or more employees.

Food Sector Workers  considered to be “full-time” or who are scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the worker takes the paid leave will be eligible for up to 80 hours of COVID-19 Supplemental Paid Sick Leave.  Workers that do not satisfy either of these two criteria are entitled to a pro-rated amount based on their normal work schedules.

Workers must be paid a rate equal to the highest of their regular rate, the state minimum wage, or the local minimum wage, up to a maximum of $511 per day and $5,100 in the aggregate over the period the Order is in effect.

COVID-19 Supplemental Paid Sick Leave will be available for employees regardless of tenure, in addition to any other paid leave to which the worker is already entitled.  Hiring Entities cannot require workers to use any other provided paid or unpaid leave, paid time off, or vacation time before taking COVID-19 Supplemental Paid Sick Leave.  The Order does provide, however, that a Hiring Entity is not required to provide COVID-19 Supplemental Paid Sick Leave if it already provides workers with paid leave that can at a minimum be used for the same purposes and in the same amounts as the paid leave provided for in the Order.

With its focus on entities with 500 or more employees, the Order clearly intends to apply to those large employers excluded from the paid sick leave provisions of FFCRA.  But the Order likely goes further.  Through its clear avoidance of the words “employee” and “employer,” the Order also includes within its scope workers outside of the traditional employment context, including workers in the “gig economy.

Pursuant to the Order, by no later than April 23, 2020, the Labor Commissions will prepare a model notice setting forth the requirements of the Order.  But California employers should not wait until then to comply because the Order by its terms goes into effect immediately.