Update:  On May 5, 2020, Cal/OSHA published an update for its guidance on COVID-19 infection prevention in grocery stores. The update expands the symptoms of COVID-19 to include “chills, muscle pain, headache, sore throat, or recent loss of taste or smell” and adds further guidance to “seek medical attention if the symptoms become severe including persistent pain or pressure in the chest, confusion, or bluish lips or face” with instructions to consult the CDC’s webpage for updates and further details.”

Update: On April 23, 2020, the DLSE published its “CA COVID-19 Supplemental Paid Sick Leave for Food Sector Workers” notice for hiring entities with 500 or more employees.  The notice, required under Governor Newsom’s Executive Order to be posted in a conspicuous place visible to workers, can be accessed here. 

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While most of California has been shuttered since county health care officials, Governor Newsom and mayors throughout the state issued orders closing most businesses, schools and other institutions during the COVID-19 pandemic, employees in the food sector continue to report to work to ensure the state’s 40 million residents are adequately supplied with food during these uncertain times. 

By virtue of their constant interaction with the public and each other, grocery store workers face the risk of potential exposure to the COVID-19 virus.  Accordingly, employers in the food sector need to be aware of the precautions they may take to help safeguard their employees from virus transmission.  Over the course of two days, Cal/OSHA, the agency responsible for enforcing the state’s workplace safety and health laws, and Governor Newsom recently issued standards for enhancing the protections of grocery store employees. 

Cal/OSHA’s Safety and Health Guidance for Food Sector Workers

On April 15, 2020, Cal/OSHA published its Safety and Health Guidance for food sector employers, applicable primarily to grocery stores, to prevent the spread of COVID-19.  Consistent with the CDC guidelines, Cal/OSHA’s guidance covers the following safety protocols:  

• Training:  Employees must understand the spread of COVID-19 and the steps to prevent transmission, such as frequent hand washing, the use of cloth face coverings per CDC guidelines, the safe use of cleaners and disinfectants on frequently touched surfaces, and maintaining appropriate physical distancing.  
• Cleaning and Disinfection:  Employers must establish procedures for the routine cleaning and disinfecting of frequently touched surfaces such as keypads, cash registers, scanners, utensils, equipment controls, and food preparation areas. 
• Increase Physical Distancing:  Employers should maintain controls to ensure people are kept at least six feet apart, such as staggering shifts and break times, marking the floors to remind customers to stay six feet apart, postings appropriate signage, and minimizing direct contact with the public and customers by limiting the number customers in the store, encouraging the use of contactless payment methods and on-line ordering, and limiting contact with the customer’s home-brought grocery bags.
• Protocols for Dealing with Employees Who Might Have COVID-19:  Employers should encourage sick workers to stay home, implement health screening programs, and send employees with acute respiratory illness symptoms home or to medical care as needed.

Governor Newsom’s Executive Order for Food Sector Workers

On April 16, 2020, Governor Gavin Newsom issued Executive Order N-51-20 for food sector workers working for companies with 500 or more employees nationwide.  Food sector workers, as interpreted by the Division of Labor Standards Enforcement (DLSE), the agency responsible for enforcing the state’s wage and hour laws, include all types of workers in the food supply chain: farmworkers, grocery store workers, and other retail workers involved in the pick-up, delivery, supply, packaging, retail, or preparation of food.  

The Executive Order enhances sanitation standards by allowing food sector employees “to wash their hands every 30 minutes and additionally as needed” and grants two weeks of supplemental paid sick leave (“COVID-19 Supplemental Paid Sick Leave”) for those affected by COVID-19.  In order to qualify for the COVID-19 Supplemental Paid Sick Leave, the food sector worker must be unable to work for one 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; or
• 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 Executive Order was intended to back fill a gap left by federal relief that had provided similar paid leave benefits for employers with fewer than 500 workers.

Next Steps

Cal/OSHA’s recent guidance and Governor Newsom’s Executive Order illustrate the state’s multi-pronged approach to improving the working conditions of front-line essential workers such as those in the food service industry.  With respect to workplace health and safety, it remains to be seen how Cal/OSHA will regulate the food industry’s COVID-19 safety protocols amid this pandemic.  Nevertheless, employers should take heed of the topics outlined above and contained in the agency’s recent guidance, as it provides a preview of the potential areas of Cal/OSHA’s focus as it ramps up its regulation of the food industry. 

Once a food service worker becomes unable to work due to COVID-19, employers must also evaluate whether the affected employee would qualify for COVID-19 Supplemental Paid Sick Leave under Governor Newsom’s Executive Order.  The analysis, however, does not exist in a vacuum.  The nuances of evaluating an employee’s entitlement to any type of leave due to COVID-19 necessarily implicates applicable federal, state and local leave laws and may also intersect with applicable laws governing reasonable accommodations and anti-discrimination.  Employers are therefore encouraged to consult with counsel in making these assessments.