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The State of California Legislature, Executive Branch, and administrative agencies continue to step up to protect food workers where the federal government cannot or will not.
Here is a straightforward explanation of the most recent laws put on the books that are aimed at protecting food workers in the Golden State.
Paid Sick Leave (California Assembly Bill 1867)
California State Assembly Bill 1867 (“AB 1867”) combines into the same bill COVID-19 supplemental paid sick leave and mandated hand washing requirements for food workers.
COVID-19 Supplemental Paid Sick Leave
AB 1867 operates as a stop-gap by mandating COVID-19 paid sick leave for workers who were excluded from this benefit under the federal FFCRA or California’s prior food worker paid sick leave Executive Order.
The federal Families First Coronavirus Response Act (”FFCRA”) — which provides for COVID-19 paid sick leave to workers of small employers — excludes workers employed by private businesses with 500 or more employees in the United States and by health care provider or emergency responders. AB 1867 covers these workers.
California Governor Newsom’s Executive Order N-51-20 came with enforceability concerns, which AB 1867 addressed by codifying most of the Executive Order and making it retroactive.
Now, under AB 1867, California full-time employees are entitled to 80 hours of paid time off (and part-time employees a proportionate amount), for any of the following 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.
- The worker is prohibited from working by the worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.
The worker’s rate of pay is the highest of the regular rate of pay for the last pay period or the state or local minimum wage, and may not exceed $511 per day, with a maximum cap of $5,110 total.
Unlike the FFCRA and other California paid sick leave ordinances, AB 1867 does not provide leave for those caring for a family member who is quarantined or sick or caring for a minor child whose school or childcare has closed due to COVID-19.
Like the FFCRA, AB 1867 expires on December 31, 2020, or upon the expiration of any federal extension of the FFCRA, whichever is later.
Hand-washing
AB 1867 requires a food sector worker working in any food facility to be permitted to wash their hands every 30 minutes and more as needed. This codifies a similar requirement set forth in the Executive Order.
Unpaid Medical/Family Leave (California Senate Bill 1383)
California State Senate Bill 1383 (”SB 1383”) expands the breadth of the California Family Rights Act (”CFRA”), which already provides California employees with up to 12 weeks of unpaid leave during each 12-month period for purposes of family and medical leave. SB 1383 bolsters this by covering more employers and more employee family members.
SB 1383 mandates California employers with as few as five employees to provide CFRA protections. The threshold had been private employers with 50 or more employees within 75 miles of the worksite.
SB 1383 expands the list of employee family members that receive protection to include siblings, grandparents, grandchildren, and domestic partners; and, the definition of “child” now covers all adult children (regardless of whether they are dependent) and children of a domestic partner.
Workers’ Compensation (California Senate Bill 1159)
California Senate Bill 1159 (“SB 1159”) expands the definition of worker injury under the workers’ compensation system to include illness or death resulting from COVID-19.
Like the prior Executive Order that expired in July, SB 1159 creates a disputable presumption that COVID-19 injuries arose out of and in the course of employment and are compensable.
SB 1159 makes a workers’ compensation claim relating to a COVID-19 illness presumptively compensable after 30 days or 45 days, rather than 90 days. It allows for the same presumption of injury for employees whose coworkers test positive for COVID-19.
The presumption will remain in effect until January 1, 2023, and it goes into effect immediately.
Notice of Exposure (California Assembly Bill 685)
California State Assembly Bill 685 (”AB 685”) increases COVID-19 exposure notice and reporting requirements on employers.
Notice to Workers
AB 685 requires employers having notice of a potential COVID-19 exposure (e.g., individual testing positive for COVID-19 was in the workplace) provide a written notice to employees and subcontractor employees who were at the worksite when a potentially infected individual was there and may have been exposed to COVID-19 as a result.
This notice must be provided within one business day of the employer being notified of a potential exposure and may be done in “a manner that the employer normally uses to communicate employment-related information,” such as personal service, mail, or text message.
Notice to Public Health Department
AB 685 requires that upon an outbreak, the employer must notify its local public health department within 48 hours and be prepared to provide information on the number of COVID-19 cases at the worksite, their names, occupation, and other pertinent information. And, employers must keep working with the local health department and provide updates on new laboratory-confirmed COVID-19 cases.
Notice to Cal/OSHA
AB 685 confirms employers must report COVID-19 cases the California Division of Occupational Safety and Health (“Cal/OSHA”), as it meets the agency’s definition of a serious injury or illness. It authorizes Cal/OSHA to issue citations for serious violations related to COVID-19 without requiring the agency to comply with pre-citation requirements.
Health And Safety Administration Enforcement
The Federal Safety and Health Administration has been criticized for lackluster enforcement of worker protections. In this vacuum, California is starting to act aggressively.
On September 4, Cal/OSHA cited 11 California employers for not protecting employees from COVID-19 exposure during inspections of industries where workers have an elevated risk of exposure. Nine of the 11 industries are food processing, meatpacking, or agriculture.
The employers were cited for various violations including some classified as serious, with proposed penalties ranging from $2,025 to $51,190.
D.L. Poultry, Inc. in Monterey Park and Olson Meat Company in Orland, California, “put their workers at risk for serious illness because they did not ensure their workers were physically distanced at least six feet apart in the processing area, nor did they install Plexiglas or other barriers between the workers.”
Uni-Kool Partners in Salinas, California, “put their workers at risk as they did not implement procedures to screen employees and visitors arriving at the facility, and failed to take appropriate measures for employees who exhibited COVID-19 symptoms at the facility.”
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The hands-off federal approach has left states like California responsible for passing and enforcing emergency legislation like the above, to protect workers while keeping the economy somewhat open.