To address fears that food sector workers are more likely to work when sick, Governor Gavin Newsom recently issued Executive Order N-51-20, which requires large food sector employers (500+ employees in U.S.) to provide up to 2 weeks of supplemental paid sick leave to workers, including independent contractors, who are unable to work due to the following COVID-19-related reasons:

• the worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
• the worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
• the worker is prohibited from working due to health concerns related to the transmission of COVID-19.

Full-time workers and workers who worked at least 40 hours each week in the two weeks prior to taking the supplemental sick leave are entitled to 80 hours of paid COVID-19 supplemental sick leave. Part-time workers with a “normal weekly schedule” are entitled to paid sick leave consistent with the normal schedule over a two-week period. Part-time workers with inconsistent work schedules are entitled to 14 times the average day worked over the prior six-month period or, if the worker has been employed for less than six months, the period of employment. 

Supplemental sick leave is to be provided upon oral or written request of the worker. Supplemental sick leave must be paid at the worker’s regular rate of pay, or the state or local minimum wage, whichever is greater, subject to a cap of $511 each day, and $5110 over the entire supplemental leave period. 

Workers of large employers entitled to supplemental sick leave include farm workers, retail grocery workers, fast food workers and food delivery drivers. The Executive Order includes food facilities that store, prepare, package, serve, vend, or otherwise provide food for human consumption at the retail level. 

Supplemental sick leave is in addition to paid sick leave provided under the state sick leave law. Further, employers may not require that a worker use other paid or unpaid leave before the worker uses the supplemental sick leave or instead of the supplemental sick leave. However, an employer that provides a supplemental paid leave benefit that can be used for the same purposes that will compensate employees in an amount equal to or greater than supplemental paid sick leave need not provide the supplemental paid sick leave in addition to such benefit. 

The Executive Order also requires that employees working in any food facility be permitted to wash their hands every 30 minutes and as needed. 

Executive Order N-51-20 will expire when the state’s stay home order ends, but any supplemental paid sick leave in progress must be permitted to be completed. Covered food sector employers are required to provide notice of the supplemental sick leave to employees, which notice can be sent by email. The Labor Commissioner is empowered to enforce Executive Order N-51-20, and has provided the required notice Here.

The author would like to gratefully acknowledge the assistance of Joanne Warriner.

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