On April 16, 2020, Governor Gavin Newsom signed an Executive Order that requires Hiring Entities to provide Food Sector Workers paid sick leave benefits mirroring those required under the Families First Coronavirus Response Act (FFCRA). The Executive Order defines “Food Sector Workers” to include workers in the retail food supply chain who perform pick-up, delivery, supply, packaging, retail, or preparation services. Eligible workers thus include grocery workers, restaurant and fast food workers, workers at warehouses where food is stored, and workers who pick up or deliver any food items. Key to this order is the definition of “Hiring Entity”—“any kind of private entity whatsoever… that has 500 employees or more in the United States.” Note that covered individuals need not be employed by the Hiring Entity. The Executive Order requires large entities to offer these benefits to any individual who provides services for or through the business, so “gig” workers who provide deliveries to large restaurant chains (but are employed by small local delivery services) would be entitled to paid leave via the larger restaurant conglomerate.

To qualify, individuals must be performing food-service industry work outside the home and be exempt from stay-at-home orders. They are entitled to paid leave under the Executive Order if they are unable to work due to a local quarantine or isolation order, if they have been advised by a health care provider to self-quarantine due to concerns about COVID-19, or if the Hiring Entity prohibits them from working due to COVID-19 concerns. Like the FFCRA, the paid sick leave entitlement for full-time employees is up to 80 hours; for part-time, it is the equivalent of an average two-week schedule. If individuals do not work regular schedules, hiring entities are to use 14 times the average daily hours worked in the preceding six-month period to determine leave entitlement. The applicable pay rate is the highest of the following: (1) the employee’s regular rate; (2) state minimum wage; or (3) local minimum wage. In no event shall the daily rate exceed $511. Note, however, that businesses who provided equivalent or greater leave rights prior to April 16, 2020 will be exempt from these additional leave requirements.

The Labor Commissioner will provide a notice by April 23, 2020. Hiring Entities must provide notice to eligible individuals via a manner calculated to reach all, whether by workplace posting or electronic distribution. Businesses will need to consider how to partner with third-party service providers to ensure appropriate notice is given, where applicable.

The Executive Order will remain effective as long as a statewide stay-at-home order is in place.

This Executive Order follows on the heels of local ordinances in Los Angeles, San Jose, and San Francisco that have extended supplemental sick leave benefits to fill the gap in FFCRA coverage. We anticipate other local jurisdictions will enact similar legislation. Consult with your legal counsel to ensure that your business is complying with the array of federal, state, and local laws addressing the pandemic.