On Thursday, April 16, 2020, Governor Gavin Newsom signed Executive Order N-51-20 (the “Executive Order”), effective immediately. The Executive Order requires all food sector businesses that employee 500 or more “food sector workers” – whether in California or nationwide – to provide COVID-19 Supplemental Paid Sick Leave. The businesses subject to the Executive Order’s reach ranges from farm to table. The Executive Orders requires that supplemental paid sick leave be extended to workers at farms, suppliers, manufacturers, warehouses, distributors, fast food restaurants, delivery companies, and grocery stores. This coverage applies to all food sector workers who perform work for the hiring entity, regardless of whether they are deemed employees of that hiring entity. That’s right – this applies to independent contractors. And, it applies to both full and part-time workers.

Who Is Covered?

The Executive Order applies to Food Sector Workers and Hiring Entities.

A “Food Sector Worker” is any person who:

• works in the canning, freezing and preserving industry;
• works in the agricultural product processing industry;
• works in facilities on a farm that prepare products for market;
• has some other general agricultural occupation;
• works for a Hiring Entity that operates a food facility as defined in Health and Safety Code Section 113789 (i.e., “an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level”); or
• delivers food from a food facility for or through a Hiring Entity.

To be covered, the person must also be exempt from Governor Newsom’s March 20^th executive order directing all individuals living in the State of California to stay home or at their place of residence, except as to maintain continuity of operations of the federal critical infrastructures (or any other statewide stay-at-home order), and that person must leave his/her home to perform work for or through a Hiring Entity.

A “Hiring Entity” means “any kind of private entity whatsoever” including a delivery or transportation company that has 500 or more employees in the United States.

What Leave Must Be Provided?

There are four categories of coverage provided by the Executive Order.

• A Food Sector Worker who is employed full time or who worked, or was scheduled to work, at least forty (40) hours in each of the two weeks before the leave date are entitled to receive eighty (80) hours of leave.
• A Food Sector Worker who does not meet these requirements, but otherwise has a normal weekly schedule, is entitled to leave equaling the total number of hours that he/she is normally scheduled to work over a two week period.
• If a Food Sector Worker does not have a normal weekly schedule, then he/she is entitled to fourteen times (14x) the average number of hours the Food Sector Worker worked each day for or through the Hiring Entity in the six (6) months preceding the leave date.
• If the Food Sector Worker has worked for the Hiring Entity less than six months, then he/she is entitled to fourteen times (14x) the average number of hours over the entire period that he/she has worked for the Hiring Entity.

When Can This Leave Be Taken?

A Food Sector Worker who is subject to a Federal, State or local quarantine or isolation order related to COVID-19, who is advised by a healthcare provider to self-quarantine due to COVID-19 related concerns, or who is prohibited from working by his/her Hinging Entity due to health concerns related to potential transmission of COVID-19 may take this supplemental leave.

What Is The Amount Of The Supplemental Paid Sick Leave?

Each hour of COVID-19 Supplemental Paid Sick Leave shall be paid at a rate equal to the highest of:

• the Food Sector Worker’s regular rate of pay for the last pay period;
• CA minimum wage; or
• the applicable local minimum wage.

No Hiring Entity is required to pay more than $511 per day and $5,110 in the applicable two week leave period. However, a Hiring Entity will be exempt from the Executive Order if it pays an amount equal or greater than what is required by the Order.

What Must Hiring Entities Avoid?

A Hiring Entity cannot require a Food Sector Worker to use any other paid or unpaid leave, PTO, or vacation time before he/she uses the COVID-19 Supplemental Paid Sick Leave. A Hiring Entity cannot retaliate against or fire a Food Sector Worker who exercises his/her rights under the Executive Order. A Hiring Entity cannot delay leave when requested by a Food Sector Worker (assuming that he/she satisfies the conditions for such leave).

The California Labor Commissioner is empowered to enforce violations of the Executive Order, and any Food Sector Worker may file a complaint with the Labor Commissioner for alleged violations.

Stay Tuned

The COVID-19 Supplemental Paid Sick Leave requirement remains effective for the duration of any statewide stay-at-home order, and workers who are on leave when such order is rescinded are entitled to take the full amount of leave. How long the statewide stay-at-home order will be in effect is anyone’s guess at this point.

Additionally, on Thursday, April 23, 2020, the Labor Commissioner will publish a model notice of this new supplemental leave requirement. Notice must be conspicuously posted in the workplace, but if a Hiring Entity’s Food Sector Workers do not frequent a workplace (ex. delivery drivers), the Hiring Entity my disseminate the required notice by electronic means (ex. email).

Of particular interest is how this leave is to be paid for. While the Families First Coronavirus Response Act (which applies to food businesses with less than 500 employees) allows for businesses to obtain a tax credit, there is no similar provision in the Executive Order. Perhaps Governor Newsom or the state legislature will address this issue in the near future. Until, then, Hiring Entities should assume that they are footing the bill.

Wash Your Hands – A Worker’s Right

Among all the other rights afforded to Food Sector Workers under the Executive Order, the easiest one to comply with is that such workers must be allowed to wash their hands at least every thirty (30) minutes. Local public health agencies are empowered to enforce this health and safety measure.

Wendel Rosen LLP and its attorneys remain ready and able to assist you during the business disruptions caused by COVID-19. Please know that our firm’s investments in information technology allow us to fully operate while working remotely.

During this time we will also try to keep you updated on key business topics that could affect your business. Below is the latest on the Federal and State tax extensions.

Federal Extensions

The IRS has issued various notices in the last several weeks providing for postponements of tax return filings and tax payments.  On April 9, the IRS issued Notice 2020-23, which provides additional clarification and postponements.  Under Notice 2020-23, nearly all federal tax returns and tax payments due on or after April 1, 2020, and by July 14, 2020, are now automatically postponed until July 15, 2020.  This includes, but is not limited to, individual income tax returns, corporate income tax returns, partnership returns, fiduciary income tax returns for trusts and estates, estate and generation-skipping transfer tax returns, and gift and generation-skipping transfer tax returns, and all tax payments related to those returns.

Quarterly estimated tax payments normally due between April 1, 2020, and July 14, 2020, are also postponed until July 15, 2020.

No penalties or interest will apply to the postponed taxes, so long as they are paid by July 15, 2020.

You can learn more at:  https://www.irs.gov/coronavirus.

California Extensions

The FTB has postponed until July 15 the filing and payment deadlines for all individuals and business entities for:

• 2019 tax returns
• 2019 tax return payments
• 2020 1st and 2nd quarter estimated payments
• 2020 LLC taxes and fees
• 2020 Non-wage withholding payments

FTB is applying the extensions to all California taxpayers. Learn more at ftb.ca.gov.

Please contact your accountant or return preparer or make other arrangements concerning the Federal and California income tax extensions.

We will watch for further information on tax filing changes and other business updates, keeping you updated as appropriate.

Happy Monday! Here’s a welcome relief from the emotional strain of the moment’s new normal of constant COVID-19 health alerts and infection updates: positive crisis leadership.

Xavier Unkovic is the Global President for Amy’s Kitchen. Last week, he shared the following message on LinkedIn to publicly support his team and food industry workers everywhere:

As we all shelter in place, the idea of food and beverage companies as essential businesses has never been more apparent. Thank you to all the employees of these essential businesses who continue to work so that we may maintain a healthy social distance for ourselves and our communities.

Similarly, hats off to the Albertsons Companies, which is seeking to have its grocery store employees classified as first responders to ensure that they get the personal protection equipment and COVID-19 testing that they need to continue to keep our grocery stores in operation and supplying us with food. To read more about this grocer’s efforts, check out the story published on Business Insider.

The big takeaways here for all businesses and their leaders is that in moments of crisis, large or small, the best approach when all eyes are on you is to remain calm, stay positive, and demonstrate unwavering commitment to your values.

In closing, I leave you with the World War II motivational slogan that has endured a timeless appeal:

The attorneys at Wendel Rosen LLP continue to wish you, your families, and your businesses well during this difficult time. We are not just attorneys “at law.” We’re also attorneys at your side, and we continue to help our clients every step of the way.

On Wednesday, April 8, 2020, the Centers for Disease Control and Prevention (CDC) published new guidelines explaining how employees of essential businesses (or “critical infrastructure,” depending on which of the various local, state or federal orders/directives apply to your business) can return to work if they have been exposed to individuals with COVID-19 or otherwise suspect such exposure.  Exposure means being in a household or having close contact within six (6) feet of an individual with suspected or confirmed COVID-19.  The timeframe for such exposure extends back to forty-eight (48) hours before that individual became symptomatic.

This does not mean, though, that an employee may return to work if he or she is symptomatic or otherwise ill.  Rather, if the employee is displaying no symptoms, he or she may return to work with certain limitations.  According to the CDC guidance, precautions to be taken include:

• Pre-Screening: Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.
• Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.  If the employee becomes sick during the day, they must be sent home immediately.  Additionally, information on persons who had contact with the ill employee during the time the employee had symptoms (including 48 hours prior to symptoms appearing) should be compiled by the employer. Others at the facility with close contact of the employee during this time are considered exposed.
• Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.
• Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
• Disinfect and Clean Work Spaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.

These precautions are guidelines; they are not the only measures that essential businesses should consider.  The CDC also recommends other steps that may be taken such as the pilot testing of face masks, working with facility maintenance staff to increase air exchanges in internal spaces, and staggering breaks to minimize potential congestion in break rooms.

Also, bear in mind that the CDC’s updated guidance does not supplant state or local guidance or orders.  For instance, SF Bay Area counties are recommending the use of face coverings when leaving home for essential travel and when persons are working at essential businesses.  Los Angeles Mayor Eric Garcetti has mandated that workers at essential business must wear masks and/or other appropriate face coverings.  Similarly, San Diego County has ordered all grocery store, pharmacy, drug store, convenience store or gas station employees who may have contact with the public to wear a face covering as described in the applicable California Department of Public Health guidance (which is not mandatory for employers, employees or the public).

If you have questions about how this CDC guidance or other state or local orders may apply to your business, the attorneys at Wendel Rosen LLP can assist you.

The U.S. Food and Drug Administration recently released topical information resources regarding COVID-19. These resources include questions and answers for industry on food supply, precautionary safety measures for worker and food safety, what to do if your workforce tests positive for COVID-19, and temporary policy guidelines. The FDA has also made available several guidance documents, which can be found on this resource page, as well as more general information for consumers regarding food safety and related concerns. In addition to these resources, food and beverage industry companies are encouraged to review the FDA’s main COVID-19 webpage on a regular basis and sign up for email updates from the FDA to ensure that they remain up to date on the latest information.

Estate planning “best practices” for signing documents are being redefined during the current pandemic.

California Probate Code dictates the execution of a last will and testament requires the signer and two witnesses to be in the presence of one another throughout the execution of such a document. All must see each other add their signature before the will is considered validly signed.

But under “shelter-in-place” orders, how can this be safely and lawfully accomplished?

In California, it can’t unless the signer (“testator”) happens to live in a collective living situation including two witnesses who are not recipients (“beneficiaries”) under the proposed will, nor named as the executor (the person who will be responsible for implementing the will’s provisions under supervision of a Probate Court). If that is not the case, two persons and the testator must consider the sacrifice of  facing increased risk of exposure by coming into contact with unrelated persons who may be carrying the virus. They also face prosecution for violation of isolation edicts.

Fortunately, there is a statute that allows an individual to adopt a will if it is entirely written in the signer’s own hand (a “holographic” will). No pre-printed writing can be on the page. The document may copy the words of a typed document prepared by another, such as an attorney. It is not witnessed. It must declare the signer’s intent that it be a last will and testament. It must be dated, and signed by the testator.

What about adoption of a “living” trust?

Although most trust documents contain provisions for acknowledgement by a notary public, notary acknowledgment is not required by California statutes in order to adopt a trust. (Many institutions, such as banks and title companies, prefer to find the comfort of a notary acknowledgement attached to a trust agreement, but it is not required that they be satisfied, particularly at this time.)

There are several options available to the person who has a document that calls for the acknowledgement by a notary.

First, the document should be signed, regardless of notarization. Why? Because it may be notarized later. The notary may acknowledge a signature that is applied in the notary’s presence  or that has already been signed elsewhere so long as the signer appears before the notary and attests to the signature being theirs. In the interim, the document becomes valid upon the signature of the person creating the trust (variously called the “Trustor” or “Settlor”). Upon its adoption, the trust may receive assets transferred to it which then may avoid statutory probate procedures commonly considered odious because of public access to private information and cost.

Second, the signer may attempt to locate a notary who is prepared to accept the risk of exposure by controlling the signing conditions (at the signer’s home or in the notary’s office, within view but 6-feet separate, masks, gloves, hand sanitizers, bring your own pen, doors open in advance, the only point of physical contact being the right thumb onto an ink pad and then onto the notary’s record book).

Some commercial establishments (banks, UPS stores) remain open as essential services with notarial services available. Best to check before leaving home.

And as for adopting an Advance Health Care Directive or a Durable General Power of Attorney, California law allows for either notarization or two witnesses for those documents. The rules for these choices described above apply.

The most significant “best practice” hasn’t changed: have an estate plan in place now. The consequence of deliberation may be the imposition of State laws in probate describing pre-ordained dispositions unsympathetic to the non-signer’s desires. A “living” trust allows improvements to be made later, but there must be a starting point.

The Families First Coronavirus Response Act requires that employers provide paid sick leave in certain circumstances related to the current COVID-19 pandemic; the law also requires that employers provide paid family leave to employees who must take leave because schools and childcare are unavailable due to COVID-19.  The sick leave may be for a number of reasons, including the lack of childcare.  The paid family leave is only for leave due to a lack of childcare.

The US Department of Labor will issue regulations exempting small businesses in certain circumstances from the requirements of providing the paid leave relating to childcare being unavailable.  The Department of Labor recently released guidance on what factors must be met to be exempt; they have not yet published the actual regulations.

The Small Business Exemption

A small business (which includes religious or nonprofit organizations) is exempt from the mandated paid sick or family leave requirements only if:

1. The employer has fewer than 50 employees; AND
2. The leave is requested because, due to COVID-19 related reasons, the child’s school or place of care is closed or the childcare provider is unavailable. (Note that the exemption from paid sick leave is ONLY for leave requested because childcare is unavailable; a small business is not exempt from paying an employee whose sick leave is due to the employee being quarantined, sick, or having to take care of another who is sick); AND
3. An authorized officer of the business has determined that:

• Providing paid sick or family leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  OR
• The absence of the employee(s) requesting paid sick or family leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; OR
• There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick or family leave, and these labor or services are needed for the small business to operate at a minimal capacity.

California and the federal government each have WARN Acts (Worker Adjustment and Retraining Notification) that require notices be given to employees and certain government agencies when a layoff involves 50 or more employees in a 30-day period.  Employers should consult with counsel as there are numerous variables.  Below is a general summary.

California WARN

Generally, the California WARN Act applies to employers with 75 or more employees in specific circumstances. It requires that employers provide 60 days’ advance notice prior to a mass layoff, relocation, or termination. Failure to provide 60 days’ notice can result in severe liability – up to 60 days’ of back pay, plus benefits for all laid-off, relocated, or terminated employees, in addition to civil penalties.

On March 17, 2020, Governor Newsom suspended certain provisions of California’s WARN Act – those that impose liability and penalties. His executive order waives the 60-day notice requirement for the duration of the COVID-19 emergency, but it does not waive the notice requirement itself. The order applies where COVID-19-related business considerations result in mass layoffs, relocations, or terminations that were not reasonably foreseeable as of the time that notice would have been required.

To qualify for the waiver of the 60-day notice requirement under the order, employers must:

1. Give written notice to employees, the EDD, the local workforce investment board, and the chief elected official of the local city and county government;
2. Give as much notice as is “practicable,” along with a brief statement of the basis for reducing the 60-day notification period; and
3. For written notice given after March 17, 2020, include the following statement: “If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at labor.ca.gov/coronavirus2019.”

Federal WARN Act

The federal WARN act applies to employers of 100 or more and also requires 60 days’ notice of plant closings and mass layoffs. Unlike the state act, though, the federal law contains exceptions for “unforeseeable circumstances” and for furloughs under certain circumstances.  Triggering events vary. The notice requirements are much the same as California’s.  In either case, attorneys should be consulted.

Having employees work at home raises a number of issues for employers and employees.  Review your telecommuting policies currently in place to ensure they work for the current situation.  For instance, many companies generally do not permit non-exempt to work from home, so you may need to supplement.  If you do not have a written policy, draft one and disseminate to all employees.

If an employee refuses to work from home for a reason that is not protected by law (e.g., telecommuting does not work with their reasonable accommodation), then the employee can be furloughed or terminated, though the employer should consult with legal counsel.

In managing employees working remotely, you should keep in mind:

Time Keeping and Breaks

• Non-exempt California employees should be reminded to take their rest and meal breaks. Employees should report their time on a daily basis (including clocking out for meal breaks) and confirm they took their breaks.
• If a non-exempt California employee is unable to take a 30-minute, duty-free meal period or one of their rest breaks, you should automatically add an extra hour of pay to their next paycheck (that is the amount of the penalty required to be paid by California law).
• Remind non-exempt employees to perform no over-time work without manager approval.
• Consider setting “office” hours during which employees are generally expected to be working and available by email/phone/virtual meeting software.
• Some employees may need to adjust their work hours to accommodate childcare needs during the COVID-19 crisis. Employees and employers may agree that work can be performed on a nontraditional and non-contiguous schedule, but this should be agreed to beforehand.  The employee is entitled to be paid for all hours reported as worked.  (See our posting regarding the new federal laws on childcare leave.)
• Exempt California employees must be paid for the entire week, even if they work only part of the week.

Home Offices

• Reimbursement of Expenses. Employees should be reimbursed for expenses associated with requirements for working from home, such as internet costs and phone.  These amounts are typically $50-$75/month.
• Injuries/Workers’ Comp. Employees should be reminded to maintain a safe work area.  Injuries incurred while working at home and in conjunction with the employee’s duties, should be reported immediately as they are still subject to workers’ comp.
• Confidential & Proprietary Information. Remind employees to protect confidential and proprietary information.  Such information should not be left in the open for others to see and IT procedures for securing electronic devices must be followed.

Generally, taking an employee’s temperature is considered a medical exam and is permitted only under certain, limited circumstances.  However, the government is relaxing the requirements relating to temperature taking if the purpose is to help protect against the spread of COVID-19.  If you choose to do this, remember it is important to protect employees’ privacy and not to single out employees because of their race, national origin, or age or the race, national origin, or age of people with whom they associate (such as a spouse or roommate).

• Be clear you are doing this only to determine if the employee may have COVID-19 (as opposed to determining whether the employee has some other medical impairment or disability).
• Use an infrared digital thermometer; it is less invasive and reduces the possibility of passing on the virus.
• Take the reading where others cannot see the process or results.
• Don’t let others know the results of the employee’s temperature reading or whether an employee was sent home immediately after a reading, which indicates that the employee had a temperature.

• Do not keep a record of the temperature readings.
• Review the CDC website regularly (cdc.gov) to make sure there have not been any changes in their recommendations about temperature readings.
• Remind employees who are taking temperature readings that a fever (a measured temperature of 100.4 F or greater) may be a symptom of COVID-19, but don’t assume the person is infected and they must treat an employee who has a fever professionally.
• You may ask employees to inform you if they test positive, but you cannot require them to tell you whether they tested and/or the results of any tests.
• Remember – not having a temperature is not determinative, so continue to take other recommended precautions.

Useful guidance may be found in U.S. OSHA’s “Guidance on Preparing Workplaces for COVID-19” (https://www.osha.gov/Publications/OSHA3990.pdf ) and, for certain specified employers, Cal OSHA’s Aerosol Transmissible Diseases standard (https://www.cdph.ca.gov/Programs/CCDPHP/DEODC/OHB/Pages/ATDStd.aspx).