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Washington Governor Jay Inslee recently ordered (Proclamation Order 20-67) that to remain in operation, food production employers must provide emergency paid sick leave in connection with COVID-19 to employees who do not have access to other state and federal sick leave programs.

The requirement is effective from August 18, 2020, to November 13, 2020, and failure to provide paid leave as required under the order may result in criminal penalties under RCW Sec. 43.06.220(5). (Press release, governor's office, August 2020.)

At the end of the "Food Production Workers Paid Leave Program," employers will be able to apply for reimbursement of paid leave expenditures from the state Department of Commerce. The order earmarks $3 million for this purpose. (Press release, governor's office; press release, Washington State Department of Commerce, August 2020.)

Covered employers and employees

Under the order, the following employers are required to provide supplemental paid sick leave to their nonfamily member food production workers who do not have access to other state and federal sick leave programs:

• Employers operating orchards, fields, and dairies
• All other industries expressly identified in WAC 296-307-006, except timber tracts, Christmas tree growing, tree farms, forest nurseries, and forestry services
• Fruit- and vegetable-packing warehouses, whether or not owned by the grower or producer
• Meat and seafood processors and packers, including those falling under the NAICS industry codes 3116 and 3117

Covered employers include farm labor contractors under RCW Chapter 49.30 if paying wages to a covered worker. Covered workers under the order include, but are not limited to:

• Domestic workers, i.e., Washington state-based workers, including those domiciled in Washington
• "Seasonal or migrant workers," as defined by the federal Migrant and Seasonal Agricultural Worker Protection Act
• Temporary foreign workers who are lawfully present in the United States to perform agricultural labor or services of a temporary or seasonal nature pursuant to Title 8 U.S.C. Sec. 1101(a)(15)(H)(ii)(a) of the immigration and nationality act

Covered workers do not have to be classified by the hiring entity or employer as an employee to be covered. Workers covered under the federal Families First Coronavirus Response Act (FFCRA) are not covered under the order.

Qualifying events eligible for paid sick leave

Covered workers are entitled to use employer paid sick leave under any of the following qualifying events:

• 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 official or provider to self-quarantine or self-isolate due to concerns related to, or a positive diagnosis of, COVID-19.
• The worker is prohibited from working due to health concerns related to the potential transmission of COVID-19.
• The worker is experiencing COVID-19 symptoms and is seeking a medical diagnosis.

Paid sick leave requirements

Employers must provide covered workers with paid sick leave at the time of and for the duration of a qualifying event, as follows:

• Covered workers scheduled to work full-time or at least 40 hours in the preceding two weeks must be provided with up to 80 hours of paid sick leave, except that employers must substitute any other paid sick leave provided, including leave provided to meet the agricultural employer's obligations under the Washington paid sick leave provisions of RCW 49.46 and associated rules, if that leave is immediately available under the same terms as described in the order.
• Covered workers scheduled to work less than full-time and less than 40 hours in the preceding two weeks must receive paid sick leave equal to the total number of hours they are normally scheduled to work during that two-week period. If a covered worker works a variable number of hours, he/she must be paid 14 times the average number of hours worked each day in the period preceding the date the worker took paid sick leave.
• Each hour of the emergency supplemental paid sick leave must be compensated at a rate equal to $430 for 40 hours, up to a maximum of $860 for 80 hours.

Ernst & Young LLP insights

As we reported previously, the City of Seattle recently ordered that gig workers be provided with paid sick-and-safe-time leave for COVID-19 related illnesses. (EY Payroll Newsflash, Vol. 21, #266, 6-17-2020.)

In 2016, Washington voters approved a paid sick leave law that, effective January 1, 2018, requires employers to allow employees to accrue paid sick leave, which may be used for COVID-19 related leave.

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