California Governor Orders Large Food Sector Employers to Offer Additional Paid Sick Leave During COVID-19 Pandemic
The COVID-19 pandemic has led to rapid changes in the laws governing the rights of workers throughout California. For example, Congress enacted the Families First Coronavirus Response Act, which grants emergency sick leave benefits to individuals working at companies with less than 500 employees. Obviously, this excludes a wide swath of Californians who work for larger employers.
In recognition of this gap, California Gov. Gavin Newsom issued an executive order on April 16 that extends emergency sick leave benefits to all “food sector workers,” regardless of their employer’s size. Newsom issued the order under the emergency police powers granted to the governor’s office under state law. In other words, the order does not permanently alter the rules governing paid sick leave in California.
With that critical caveat, here are some answers to basic questions you might have about the governor’s order and its impact on your rights:
Am I Considered a “Food Sector Worker”?
You are if you meet all three of the following requirements:
- You are currently exempt from the governor’s prior “shelter in place” order, or any other statewide state-at-home order because you are classified as an “essential critical infrastructure worker.”
- You must leave your home to perform your job.
- You work in any industry involving the growing, preparation, preservation, or retail sale of food; this includes working as a delivery person.
Is My Employer Covered by the Order?
As noted above, the governor’s order is designed to fill the paid sick leave gap created by Congress. This means the order only applies to “hiring entities” with 500 or more employees working in the United States. The order also expressly covers “Delivery Network Companies,” such as Grubhub or Uber, that facilitate the delivery of food via the Internet.
What Sick Leave is Available Under the Governor’s Order?
In addition to any existing paid sick leave rights you have under California law, the order requires a covered employer to grant up to 80 hours of “supplemental” paid leave if you qualify. Employees classified as “full time” by the employer, or who were scheduled to work an average of at least 40 hours per week in the 2 weeks prior to taking leave, are entitled to the full 80 hours. Other workers are entitled to supplemental leave as follows:
- If you have a “normal weekly schedule,” then you get leave equal to the number of hours you were scheduled to work over two weeks
- If you work a “variable number of hours” each week, then you get leave equal to 14 times the average number of hours that you worked in the past 6 months; if you have been with your employer less than 6 months, this calculation is based on the “entire period” you have worked for your employer.
How Much Is My Supplemental Paid Sick Leave Benefit?
For each hour of leave you take under the order, your employer must pay you at either your regular pay rate for your last pay period or the applicable minimum wage, whichever is higher, up to $511 per day or $5,110 for the entire leave period.
How Do I Request Supplemental Paid Sick Leave Benefits?
Your employer is required to give you supplemental leave immediately upon written or oral request. Your employer cannot force you to use any other form of vacation or leave before, or in lieu of, the supplemental paid sick leave provided in the governor’s order. Keep in mind, however, that the order only covers leave requested for reasons related to the COVID-19 pandemic. If you have additional questions regarding the order, contact a qualified California employment law attorney right away.