Update on Kentucky’s “Healthy At Work” Reopening

(Updated with information available from the Governor’s Office as of 4 pm, June 19, 2020) 

by Kathie McDonald-McClure, Partner

 On Wednesday, June 3, 2020, during his daily update, Governor Andy Beshear provided an overview of Kentucky’s efforts to combat the novel coronavirus 2019 (COVID-19) public health emergency (PHE).  He noted that Kentucky was one of the first states to declare a state of emergency on March 6, 2020.  Then, on March 26, 2002, the Governor launched Healthy at Home, with information, advice and restrictions aimed at ensuring social distancing and protecting the state’s health care operations.  Governor Beshear reported that studies by the CDC, the University of Louisville and the University of Kentucky all show that these early actions saved thousands of Kentuckians’ lives.

On April 27, 2020, the Governor began reopening parts of the healthcare sector with Healthy at Work for Healthcare Facilities, a four-phase, gradual reopening of healthcare services (not applicable to long-term care settings).  Phases I, II, III and IV are all now underway, with Phase IV having begun on May 27, 2020.  Under Phase IV, non-urgent/non-emergent inpatient procedures can proceed at volumes determined by each healthcare facility.  Visitation restrictions, however, remain in force: a single (one) visitor/support person per patient based on the best judgment and discretion of the facility. For additional information, see the Governor’s Healthy at Work for Healthcare Facilities website and Order.

Then, on May 11, 2020, Governor Beshear began reopening the non-healthcare sectors of Kentucky’s economy that had been closed due to the COVID-19.  In his June 3rd update, the Governor reported that Kentucky is nationally recognized as among few states that are meeting the White House and CDC guidance for reopening the economy.  The reopening, called Healthy at Work, has been a phased approach that is intended to guide businesses and healthcare providers through a “smart, safe and gradual” reopening during the continuing COVID-19 PHE.  It is based on criteria set by public health experts and advice from industry experts. Each phase of Healthy at Work will be rolled out in steps to ensure the Commonwealth’s citizens can safely return to work while still protecting the most vulnerable Kentuckians.

Minimum Requirements Applicable to All Reopenings. Healthy at Work has continued with a phased reopening of specific business and organizational sectors. However, pursuant to the Governor’s Executive Order of May 11, 2020, all entities in the Commonwealth shall comply with certain “Minimum Requirements” attached to that Executive Order, in addition to business or activity-specific requirements.

Update! During his June 10, 2020 daily update, the Governor emphasized the importance of following the Healthy at Work Minimum Requirements, stating that the Commonwealth has seen a rise in positive COVID-19 cases as people have started going back to work.  He clarified that being able to gather in groups of 10 or less does not mean that people in such groups should not socially distance themselves.  He encouraged Kentuckians to meet outdoors as much as possible and asked employers to make accommodations for those who fall into high risk categories for whom COVID-19 can be deadly. He stressed the importance that businesses, churches and other groups follow the Minimum Requirements as long as COVID-19 is out there in our communities and the economy is opening back up without a vaccine.

While all entities and activity organizations should carefully review the Minimum Requirements (EnglishEspañola) , the Healthy at Work webpage highlights the following requirements:

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As emphasized by the Governor, compliance with the above Minimum Requirements is essential to protect employees in all businesses, organizations and activities – both healthcare and non-healthcare – as well as to protect the individuals with whom employees may come into contact both inside and outside of their work and other activities. The Minimum Requirements are applicable to all businesses, both those that have reopened and those that had continued to operate throughout the COVID-19 PHE.

As set forth in the Minimum Requirements, if any entity fails to comply with the Minimum Requirements, they can be reported to KYSAFER at 833-KYSAFER or kysafer.ky.gov.

Industry Specific Guidance and Timeline for Reopening. Industry specific guidance will be in place for each business sector under Healthy at Work. The Governor has stated in his daily updates that the business community submitted over 1,000 industry specific proposals on best practices to safely operate within each industry’s capabilities, while keeping employees and customers safe. The timeline for reopening each business sector and the industry-specific requirements for each sector that will apply to all businesses even if they never ceased operations during the state of emergency is as follows (Specific requirements that are new with this update are flagged below as “New!” or “Updated!”):

May 9, 2020:

May 11, 2020:

  • Construction – Specific requirements
  • Horse racing (no fans)(only authorized employees, Kentucky Horse Racing Commission license holders who have a horse stabled at a racetrack, and those providing support for a horse stabled at a racetrack at the racetrack, e.g., racetrack employees, trainers, assistant trainers, exercise riders, grooms, hot walkers, jockeys, veterinarians, farriers, and feed vendors) – Specific requirements
  • Manufacturing, distribution and supply chain businesses – Specific requirements
  • Office-based businesses (at 50% capacity)(includes finance and accounting, legal, insurance, engineering, architecture, real estate, scientific/technical, property management, non-profit organizations performing administrative services, and other corporate offices and private office-based firms) – Specific requirements
  • Pet grooming and boarding – Specific requirements
  • Photography (limited to family units and groups no larger than 10 provided that individuals who are not living in the same household pose at least 6 feet apart) – Specific requirements
  • Vehicle or vessel dealerships – Up to 50% capacity as of June 11 – Revised Specific Requirements

May 18, 2020 – Order

May 20, 2020 – Order

May 22, 2020 – Order

May 25, 2020 – Order

June 1, 2020 – Order

June 8, 2020 – Order

  • Educational and Cultural Activities – Specific Requirements
    • Includes aquariums, distilleries, libraries, limited outdoor attractions, museums
    • Does NOT include amusement parks, theme parks, music venues, waterparks, fairs, festivals, sports complex and other convention or entertainment venues that attract large crowds.
  • Horse Shows – Specific Requirements
  • Some Childcare (in-home programs) – Specific Requirements

June 10, 2020  

June 11, 2020

  • Kentucky Horse Park
  • Kentucky State Park Campgrounds
  • Vehicle or Vessel Dealerships 2.0 – Up to 50% capacity – Specific Requirement

June 15, 2020

June 29, 2020

The Specific Requirements are also available in Spanish on the Healthy at Work webpage.

Information on specific requirements that have not yet been posted will be announced during the Governor’s daily updates as they are approved.  Although not required to reopen, the Governor encourages industry groups, trade associations, and individual businesses to submit reopen proposals that discuss strategies and challenges they face in safely reopening.  All proposals are to be evaluated according to White House guidelines and other public health criteria to ensure that Kentucky businesses and other activities are able to comply with public health protocols and CDC guidelines.

Healthy at Work Signage & Other Resources. Kentucky’s Healthy at Work webpage contains links to several resources businesses can use to help implement the Minimum Requirements. These include signage for employees and customers in English, Spanish and French, including signs for Healthy at Work compliance, Do Not Enter if Sick signs and Grocery Store Signage.  There is a link for businesses who need hand sanitizers and masks as well as a video on how to make a simple mask out of a bandana.  The Governor’s Office has developed a Frequently Asked Questions (FAQs) webpage to answer questions on how the Commonwealth is reopening the state’s economy under the Healthy at Work plan.

The Governor frequently reminds the public during his updates that any of the planned reopenings could be paused as needed to protect public health, especially if the Commonwealth’s progress in the fight against COVID-19 is threatened if Kentuckians let their guard down as a result of the reopenings.

For the latest information on Healthy at Work, click here.

CMS Releases Weekly Update of Nursing Home COVID-19 Data

As previously reported, all nursing homes are now required to report COVID-19 cases and deaths to the Centers for Disease Control and Prevention. The Centers for Medicare & Medicaid Services (CMS) has published the reported COVID-19 data for the week ending June 7, 2020. This information can be searched by a number of different data points and tools, including a map tool that allows the user to zoom in and click on a dot representing a nursing facility to see specific data for that facility. The site also shows total facility residents confirmed cases and deaths by state.

OCR Provides Guidance to Providers on Contacting Former COVID-19 Patients About Blood and Plasma Donations

On June 12, 2020, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) published guidance to health care providers regarding whether they can contact patients who have recovered from COVID-19 about blood and plasma donation opportunities. The guidance explains that HIPAA covered entities are permitted to use protected health information to identify and contact those patients for population-based activities related to improving health, case management, or care coordination. Providers are permitted to use PHI for this purpose without authorization only to the extent that these activities do not constitute marketing.

HHS Delays Provider Grant Reporting

As we previously reported, under the Terms and Conditions of the CARES Act Provider Relief Fund grants, health care providers receiving the funds agreed to make quarterly reports about how they spent the payments. These reports were originally due on July 10, ten days after the quarter ending June 30.  On June 13, 2020, the U.S. Department of Health and Human Services (HHS) updated guidance that recipients will not have to submit separate quarterly reports, saying that HHS public data disclosures would fulfill this requirement under the CARES Act.

Read moreHHS Delays Provider Grant Reporting

No Mandatory Antibody Testing

by Courtney Ross Samford

The U.S. Equal Employment Opportunity Commission (EEOC) has announced that COVID-19 antibody tests cannot be required before employees are permitted to return to the workplace.  Since an antibody test constitutes a medical examination under the Americans with Disabilities Act (ADA), it is only permitted when it is “job related and consistent with a business necessity.”   Relying on the Centers for Disease Control and Prevention’s (CDC) guidance that antibody tests “should not be used to make decisions about returning persons to the workplace[,]” the EEOC concluded that the testing is neither.  As a result, mandatory antibody testing is prohibited by the ADA.