§ 248. — 248. (Added by Stats. 2020, Ch. 45, Sec. 3.)

(a)
As used in this section:
(1)
“COVID-19 food sector supplemental paid sick leave” means supplemental paid sick leave provided pursuant to this section.
(2)
“Food sector worker” means any person who satisfies all of the following criteria:
(A)
The person satisfies one or more of the following criteria:
(i)
The person works in an industry or occupation defined in paragraph (B) of Section 2 of IWC Wage Order 3-2001, paragraph (H) of Section 2 of IWC Wage Order 8-2001, paragraph (H) of Section 2 of IWC Wage Order 13-2001, or paragraph (D) of Section 2 of IWC
Wage Order 14-2001.
(ii)
The person works for a hiring entity that operates a food facility, as defined in Section 113789 of the Health and Safety Code.
(iii)
The person delivers food from a food facility, as defined in Section 113789 of the Health and Safety Code, for or through a hiring entity.
(B)
The person leaves the person’s home or other place of residence to perform work for or through the person’s hiring entity.
(3)
“Hiring entity” means a private sole proprietorship or any kind of private entity whatsoever, including, but not limited to, any kind of corporation, partnership, limited liability company, limited liability partnership, or any other kind of business enterprise, and specifically including, but not limited to, any delivery network
company, as defined in subdivision (b) of Section 6041.5 of the Revenue and Taxation Code, and any transportation network company, as defined in subdivision (c) of Section 5431 of the Public Utilities Code, that has 500 or more employees in the United States. For purposes of this paragraph, Section 826.40(a)(1) and (2) of Title 29 of the Code of Federal Regulations shall be used to determine the number of employees that the hiring entity employs.
(4)
“IWC Wage Order” means a wage order of the Industrial Welfare Commission.
(b)
A food sector worker shall be entitled to COVID-19 food sector supplemental paid sick leave as follows:
(1)
A hiring entity shall provide COVID-19 food sector supplemental paid sick leave to each food sector worker who performs work for or through the hiring entity if that food sector worker is
unable to work due to any of the following reasons:
(A)
The food sector worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
(B)
The food sector worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
(C)
The food sector worker is prohibited from working by the food sector worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.
(2)
A food sector worker shall be entitled to the following number of hours of COVID-19 food sector supplemental paid sick leave:
(A)
A food sector worker is entitled to 80 hours of COVID-19 food sector supplemental paid
sick leave, if the food sector worker satisfies either of the following criteria:
(i)
The hiring entity considers the food sector worker to work “full time.”
(ii)
The food sector worker worked or was scheduled to work, on average, at least 40 hours per week for the hiring entity in the two weeks preceding the date the food sector worker took COVID-19 food sector supplemental paid sick leave.
(B)
A food sector worker who does not satisfy either of the criteria in subparagraph (A) is entitled to an amount of COVID-19 food sector supplemental paid sick leave as follows:
(i)
If the food sector worker has a normal weekly schedule, the total number of hours the food sector worker is normally scheduled to work for or through a hiring entity over two weeks.
(ii)
If the food sector worker works a variable number of hours, 14 times the average number of hours the food sector worker worked each day for or through the hiring entity in the six months preceding the date the food sector worker took COVID-19 food sector supplemental paid sick leave. If the food sector worker has worked for the hiring entity fewer than six months, this calculation shall instead be made over the entire period the food sector worker has worked for the hiring entity.
(C)
The total number of hours of COVID-19 food sector supplemental paid sick leave to which a food sector worker is entitled pursuant to subparagraph (A) or (B) shall be in addition to any paid sick leave that may be available to the food sector worker under Section 246, but shall not be in addition to the total number of hours of supplemental paid sick leave available to the worker under Executive
Order N-51-20.
(D)
A food sector worker may determine how many hours of COVID-19 food sector supplemental paid sick leave to use, up to the total number of hours to which the food sector worker is entitled pursuant to subparagraph (A) or (B). The hiring entity shall make COVID-19 food sector supplemental paid sick leave available for immediate use by the food sector worker, upon the oral or written request of the worker to the hiring entity.
(E)
A hiring entity is not required to provide a food sector worker more than the total number of hours of COVID-19 food sector supplemental paid sick leave to which the food sector worker is entitled pursuant to subparagraph (A) or (B) above.
(3)
(A)
Each hour of COVID-19 food sector supplemental paid sick leave shall be compensated at a rate equal to the
highest of the following:
(i)
The food sector worker’s regular rate of pay for the food sector worker’s last pay period.
(ii)
The state minimum wage.
(iii)
The local minimum wage to which the food sector worker is entitled.
(B)
Notwithstanding subparagraph (A), a hiring entity shall not be required to pay more than five hundred eleven dollars ($511) per day and five thousand one hundred ten dollars ($5,110) in the aggregate to a food sector worker for COVID-19 food sector supplemental paid sick leave taken by the worker.
(4)
A hiring entity shall not require a food sector worker to use any other paid or unpaid leave, paid time off, or vacation time provided by the hiring entity to the food
sector worker before the food sector worker uses COVID-19 food sector supplemental paid sick leave or in lieu of COVID-19 food sector supplemental paid sick leave.
(c)
Notwithstanding subdivision (b), if a hiring entity already provides the relevant food sector worker with a supplemental benefit, such as supplemental paid leave, that is payable for the reasons listed in paragraph (1) of subdivision (b) and that would compensate the food sector worker in an amount equal to or greater than the amount of compensation for taking COVID-19 food sector supplemental paid sick leave to which the food sector worker would otherwise be entitled as set forth under paragraph (3) of subdivision (b), then the hiring entity may count the hours of the other paid benefit or leave towards the total number of hours of COVID-19 food sector supplemental paid sick leave that the hiring entity is required to provide to the food sector worker under paragraph (2) of
subdivision (b). For purposes of the foregoing, the other supplemental paid benefit or leave that may be counted does not include paid sick leave to which the food sector worker is entitled under Section 246, but may include paid leave already provided by the hiring entity pursuant to Executive Order N-51-20 or supplemental paid leave provided pursuant to federal or local law for the same reasons set forth in paragraph (1) of subdivision (b).
(d)
(1)
In addition to other remedies as may be provided by the laws of this state or its subdivisions, including, but not limited to, the remedies available to redress any unlawful business practice under Chapter 5 (commencing with Section 17200) of Part 2 of Division 7 of the Business and Professions Code, the Labor Commissioner shall enforce this section. For purposes of such enforcement and to implement COVID-19 food sector supplemental paid sick leave, this section shall apply as
follows:
(A)
The Labor Commissioner shall enforce this section as if COVID-19 food sector supplemental paid sick leave constitutes “paid sick days,” “paid sick leave,” or “sick leave” under subdivision (n) of Section 246, subdivisions (b) and (c) of Section 246.5, Section 247, Section 247.5, and Section 248.5. Any claim by a covered worker that is enforceable by the Labor Commissioner for supplemental paid sick leave pursuant to Executive Order N-51-20 shall also be enforceable through this section.
(B)
Section 249 applies to COVID-19 food sector supplemental paid sick leave.
(2)
For purposes of sections of this code cited in subparagraphs (A) to (C), inclusive, of paragraph (1), in construing this section all food sector workers shall be considered employees and any hiring entity shall be considered an employer.
(e)
The requirement to provide COVID-19 food sector supplemental paid sick leave as set forth in this section applies retroactively to April 16, 2020, and shall expire on December 31, 2020 or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act (Public Law 116-127), whichever is later, except that a food sector worker taking COVID-19 food sector supplemental paid sick leave at the time of the expiration of this section shall be permitted to take the full amount of COVID-19 food sector supplemental paid sick leave to which that food sector worker otherwise would have been entitled under this section.

Legislative History

Added by Stats. 2020, Ch. 45, Sec. 3. (AB 1867) Effective September 9, 2020.