Update on Kentucky’s “Healthy At Work” Reopening

(Updated with information available from the Governor’s Office as of 3 pm, June 12, 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:

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:

  • Places of Worship – Updated! Up to 50% capacity as of June 10 (See Revised Specific Requirements under June 10 below)

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 Updated! Up to 50% capacity as of June 11 (See Revised Specific Requirements under June 11 below)

May 18, 2020:

May 20, 2020:

May 22, 2020:

May 25, 2020:

June 1, 2020

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
  • Updated! Vehicle or Vessel Dealerships 2.0 – Up to 50% capacity – Specific Requirements

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.

EEOC’s Updated Return to Work Guidance

by Courtney Ross Samford

On June 11, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its Q&A’s regarding COVID-19 and the Americans with Disabilities Act  (ADA), the Rehabilitation Act and other EEOC laws.  In particular, parts of the new guidance address specific issues that may arise as older workers, pregnant employees, and those with high-risk family members return to the workplace.  

The guidance includes a best practice for inviting employees’ requested flexibility prior to their return.

G.6.  As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements? (6/11/20)

Yes.  The ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact – if they wish – to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return.  If requests are received in advance, the employer may begin the interactive process. An employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about who to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions.

An employer also may send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. The employer should specify if the contacts differ depending on the reason for the request – for example, if the office or person to contact is different for employees with disabilities or pregnant workers than for employees whose request is based on age or child-care responsibilities.

Either approach is consistent with the ADEA, the ADA, and the May 29, 2020 CDC guidance that emphasizes the importance of employers providing accommodations or flexibilities to employees who, due to age or certain medical conditions, are at higher risk for severe illness.

Regardless of the approach, however, employers should ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply, for instance, with respect to accommodations due to a medical condition, a religious belief, or pregnancy.

Despite the CDC’s warning that individuals over the age of 65 are at a higher risk of developing complications related to COVID-19, the EEOC warned that employers cannot exclude workers that fall into this category from returning to the workplace.

H.1.  The CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus and therefore has encouraged employers to offer maximum flexibilities to this group.  Do employees age 65 and over have protections under the federal employment discrimination laws? (6/11/20)

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older.  The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age.  However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.

Workers age 65 and older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities.  As such, they may request reasonable accommodation for their disability as opposed to their age.

Regarding employees with high-risk family members, the EEOC provided the following guidance:

D.13.  Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition? (6/11/20)

No.  Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment.  The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.

For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.

Of course, an employer is free to provide such flexibilities if it chooses to do so.  An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.

Finally, the EEOC warned employers not to provide more favorable treatment to female employees regarding childcare responsibilities, and reiterated that pregnant employees may not be involuntarily excluded:

I.1.  If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations? (6/11/20)

Employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics.  For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.

J.1.  Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy? (6/11/20)

No.  Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy.  Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.

J.2.  Is there a right to accommodation based on pregnancy during the pandemic? (6/11/20)

There are two federal employment discrimination laws that may trigger accommodation for employees based on pregnancy.

First, pregnancy-related medical conditions may themselves be disabilities under the ADA, even though pregnancy itself is not an ADA disability.  If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.

Second, Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work.  This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.  Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.

The EEOC’s full guidance is available here.

HHS to Issue Additional $25 Billion in Provider Relief Aid to Medicaid and CHIP Providers

On June 9, 2020, the Department of Health and Human Services (HHS) announced that additional distributions from the Provider Relief Fund established under the CARES Act will be made to eligible Medicaid and Children’s Health Insurance Program (CHIP) providers. HHS will distribute approximately $15 billion to Medicaid and CHIP providers that have not received a payment from the Provider Relief Fund and $10 billion to safety net hospitals that serve the most vulnerable populations. Medicaid and CHIP providers who have not yet received Provider Relief Fund payments can report their annual patient revenue information to HHS’s enhanced Provider Relief Fund Payment Portal to receive a distribution of at least 2% of reported gross revenue from patient care. Assisted living facilities and other home and community-based service providers that have previously missed out on payments that targeted Medicare-supported nursing homes may be eligible for distributions. All providers should be prepared to submit federal tax returns for 2017-2019, the first quarter federal tax return for 2020, a federal unemployment tax return, a worksheet for calculating the provider’s number of full-time employees, and a worksheet for calculating gross revenue. You can read more about the anticipated effects of the reporting and distribution process here.

CMS Publishes New Recommendations for Non-emergent Non-COVID-19 Healthcare To Include SARS COV-2 Testing or 14-Day Isolation

On June 8, 2020, the Centers for Medicare & Medicaid Services (CMS) issued recommendations on re-opening healthcare facilities to provide non-emergent non-COVID-19 (NCC) healthcare.  CMS stated that these recommendations are applicable only to facilities in states and regions with no evidence of a rebound and that satisfy Phase II of the White House Gating Criteria.  Subject to more specific and applicable state-based requirements (such as the Kentucky guidance for healthcare facilities), the new CMS guidance sets forth specific recommendations to reduce the risk of COVID-19 exposure and transmission when providing in-person NCC care.  One such recommendation is that facilities conduct SARS COV-2 testing 24 hours prior to an NCC procedure or admission, including patients in the labor and delivery areas.  If testing is not available, CMS recommends that the patient self-isolate for 14 days before receiving NCC care.  Among the other recommendations in this new CMS guidance are that staff wear surgical face masks or N95 masks (as appropriate) at all times, that the facility conduct daily screening of staff for COVID-19 symptoms to ensure future workforce availability, that facilities have a cleaning and disinfection plan for any areas where patients will receive NCC care, and that facilities adopt procedures to minimize contact between patients in waiting and other areas of the facility.  (Note: The CMS document contains a broken link to the White House Gating Criteria which can be accessed above or here: White House Gating Criteria.)