California, Los Angeles and San Francisco all temporarily expand their sick leave laws in response to COVID-19.  The supplemental sick leave laws require certain companies not covered by the Families First Coronavirus Act (FFRCA) to provide additional benefits to their workers.  Here is a brief overview of what companies need to know in order to avoid legal pitfalls.

CALIFORNIA SUPPLEMENTAL SICK LEAVE FOR FOOD SECTOR WORKERS

On April 16, 2020, Governor Newsome issued Executive Order N-51-20 (Order) which provides supplemental paid sick leave to food sector workers (regardless of whether they are deemed employees) for certain circumstances related to COVID-19. The order applies to food sector businesses with 500 or more employees nationwide.

Who is a food sector worker? Food sectors workers include employees and contractors working in the following industries:

• Canning, freezing and preserving (Wage Order 3)
• Industries handling products after harvest (Wage Order 8)
• Preparing agriculture for sale (Wage Order 13)
• General agricultural occupations (Wage Order 14)
• Other workers in the retail food supply chain including grocery workers, restaurant and fast food workers, workers at warehouses where food is stored, and workers who pick-up or deliver any food items.

Qualifying Reasons For Taking Supplemental Sick Leave. Food sector workers may to take supplement sick leave when they are unable to work because:

1. They are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
2. They were advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
3. They are prohibited from working by the hiring entity due to health concerns related to the potential transmission of COVID-19.

Benefit of Supplemental Sick Leave. Full-time food sector workers are entitled to 80 hours of supplemental sick leave.  This includes food sector workers that were scheduled to work an average of at least 40 hours per week in the two weeks before the leave. Part-time food sector workers with a regular weekly schedule are entitled to the number of hours of supplement sick leave the worker would be normally scheduled to work during a two–week period. Part-time workers who work variable schedules are entitled to supplemental sick leave equivalent to fourteen times the average number of hours the worker worked each day in the six months preceding the date of leave. If the part-time worker has worked for the hiring entity for fewer than six months, this calculation is made based on the average number of hours the worker has worked each day during the entire period the worker provided services to the hiring entity.

During supplemental sick leave, a food sector worker’s paid leave benefit shall be paid by the employer, and is calculated based upon his/her regular rate of pay for the last pay period prior to the leave, the State minimum wage; or the local minimum wage, whichever amount is greater, up to a maximum of $511 per day and $5,110 in total.

Exemptions. Hiring entities are exempt, if as of April 16, 2020, they offered paid leave for the same qualifying reasons as the Order and at a level at least equal to the benefits provided under the Order.

Duration of the Order. The order will remain in effect for the duration of any statewide stay-at-home order. A food sector worker who is taking supplemental sick leave at the time that the stay at home order is lifted will receive benefits for the duration of the leave.

Employer Posting Requirement. Hiring entities must post a notice regarding supplemental paid sick leave in a conspicuous place where other important posters are displayed. If the hiring entity’s food sector workers do not frequent a workplace, the hiring entity may satisfy the notice requirement by disseminating notice through electronic means. A sample poster can be found on the Labor Commissioner’s website at https://www.dir.ca.gov/dlse/Coronavirus-Disease-COVID-19-FAQs.htm.

Additional Time for Handwashing. All businesses that store, prepare, package, serve, vend, or otherwise provide food for human consumption at the retail level must permit workers to wash their hands every 30 minutes and additionally as needed.

LOS ANGELES CITY SUPPLEMENTAL COVID-19 SICK LEAVE

On April 10, 2020, Mayor Eric Garcetti issued a public order providing supplemental sick leave to qualified employees working in the City of Los Angeles.

Covered Employees.  The Los Angeles order covers employees who were employed by the same coved employer from February 3, 2020 through March 4, 2020, and perform work within the geographic boundaries of the City of Los Angeles.

Covered Employers. The Los Angeles order applies to employers with 500 or more employees within the City of Los Angeles or 2,000 or more employees nationwide.

Qualifying reasons For Taking Supplemental Sick Leave. Employees of covered employers who are unable to work or telework for any of the following qualify reasons are entitled to supplemental sick leave:

1. The employee has a COVID-19 infection or a public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
2. The employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
3. The employee needs to care for a family member who is not sick but who public health officials or healthcare providers have required or recommended be in isolation or self-quarantine; or
4. The employee needs to provide care for a family member whose senior care provider or whose school or childcare provider (for children under 18) temporarily ceases operations in response to a public health or other public official’s recommendation, and the employee is unable to secure a reasonable alternative caregiver.

Request for Leave. An employee may request leave either orally or in writing. An employer may not request a doctor’s note or other documentation to verify the employee’s qualification for leave.

Exemptions. Covered employers that fall within any under any of the following categories are exempt from the Los Angeles order:

• Emergency and health service personnel;
• Critical parcel delivery employees;
• Providers of generous leave, i.e., employers with a paid leave or paid time off policy that provides employees with 160 or more hours of paid leave a year;
• A new business that opened in the City or relocated to the City between September 4, 2019 and March 4, 2019;
• Government employers;
• Any business that was closed or not operational after March 4, 2020, for 14 or more days because of the City’s emergency order; and
• Employers with a collective bargaining agreement is in place.

Benefit of Supplemental Sick Leave. Employees classified as full time or who work at least 40 hours per week are entitled to 80 hours of supplemental paid sick leave. Part time employees are entitled to supplemental paid sick leave in an amount no greater than the employee’s average two-weeks’ pay from February 3, 2020 through March 4, 2020.

Supplemental paid sick leave pay shall be paid by the employer and is calculated based on an employee’s average two-weeks’ pay from February 3, 2020 through March 4, 2020, up to a maximum of $511 per day and $5,110 in total.

Supplemental sick leave is separate from and in addition to any regular paid sick leave offered by the employer. However, an employer who provided additional paid leave (not including any previously accrued leave) for the same qualifying reasons after March 4, 2020, may offset every hour of paid leave the employer allowed an employee to take from its supplemental sick leave obligations.

Duration of the Order. The order will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

SAN FRANCISCO CITY SUPPLEMENTAL COVID-19 SICK LEAVE

On April 14, 2020, the San Francisco Board of Supervisors passed the Public Health Emergency Leave Ordinance (PHELO), and Mayor London Breed signed the ordinance into law on April 17, 2020. The PHELO  requires that employers with 500 or more workers provide up to 80 hours of paid sick leave for COVID-19-related reasons. The supplemental leave may be taken between April 17, 2020 and June 17, 2020.

Covered Employers.  PHELO applies to employers with 500 or more employees, but expressly does not apply to a “Covered Employer” (with fewer than 500 employees) as defined in Section 5110(2)(B) of the federal Families First Coronavirus Response Act.

Covered Employees. PHELO defines an “employee” as any person performing labor or services for remunerations who is an employee under California Labor Code 2750.3 and who performed at least 56 hours of work within the boundaries of San Francisco during the year prior to leave. Note: Under PHELO, workers that have been laid off by their employer are no longer eligible for paid sick leave, but workers on furlough are expressly entitled to leave.

Qualifying reasons For Taking Supplemental Sick Leave. A covered employee who is unable to work or telework for one the following qualifying reasons is entitled to paid leave under PHELO:

1. The employee is subject to an individual or general Federal, State, or Local quarantine or self-isolation order and is unable to telework. This includes employees who are unable to work because of current shelter-in-place orders and members of the “vulnerable population (people who are 60 years old and older; people with certain health conditions such as heart disease, lung disease, diabetes, kidney disease, and weakened immune systems; and, people who are pregnant or were pregnant in the last two weeks).
2. The employee was advised by a health care provider to self-quarantine.
3. The employee is experiencing symptoms associated with COVID-19 and seeking a medical diagnosis.
4. The employee is caring for a family member who is subject to an order as described in (1) above, has been advised to self-quarantine as described in (2) above, or is experiencing symptoms as described in (3) above.
5. The employee is caring for a family member whose school or place of care has closed, or whose care provider is unavailable, due to the COVID-19 public health emergency.
6. The employee is experiencing any other substantially similar condition specified by the Local Health Officer, or under Section 5102(a)(6) of the Families First Coronavirus Act, by the United States Secretary of Health and Human Services.

Request for Leave. An employee is entitled to leave upon a verbal or written request. An employer may not request a doctor’s note or other documentation to verify that an employee’s qualification for leave, but employers are required to keep records documenting the leave.

Exemptions. Private sector employers at San Francisco International Airport and businesses located in a federal enclave, such as the Presidio, are exempt from PHELO.

Supplemental Sick Leave Benefits. Full time employees are entitled to 80 hours of supplemental sick leave. An employee who was a part-time employee as of February 25, 2020, is entitled to sick leave equivalent to the average number of hours over a two-week period that the employee was scheduled to work during the six months ending February 25, 2020, including hours for which the employee was on leave of any type.

Supplemental sick leave must be provided in addition to existing paid that the employer offered to employees prior to the ordinance. However, an employer that provided additional leave in response to COVID-19 may offset such additional leave against the supplemental sick leave requirement.

Employer Posting Requirement. Employers are required to provide notice to employees in a manner that will reach all employees by either posting a notice in a conspicuous place, sending it via email, and/or posting notice on the employer’s web based app.

Duration of The Order. PHELO remains in effect until June 17, 2020.

Conclusion

In this article, we have summarized the ordinance applicable to all food sector works in the State, and the ordinance promulgated by the two largest cities. Other municipalities have promulgated similar orders and employers must remain vigilant and continue to monitor the ordinances issued by their local government officials.

For additional information, you can consult with a Task Force attorney Task by emailing NDCovid19Response@ndlf.com or contacting our office directly at 949-854-7000.