The Kentucky “Healthy At Work” Phased Reopening

Update: May 29, 2020

by Kathie McDonald-McClure, Partner

As we previously reported, on May 11, 2020, Governor Andy Beshear began reopening sectors of Kentucky’s economy, in addition to the healthcare sector, that were closed due to the novel coronavirus 2019 (COVID-19) public health emergency (PHE). The reopening, called Healthy at Work, is 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.

Prior to the phased reopening of the non-healthcare sector, the Commonwealth began with “Healthy at Work for Healthcare Facilities,” a four-phase, gradual reopening of healthcare services that began on April 27, 2020. Phases I, II and III are now underway, with the latest phase beginning on May 13, 2020 with non-urgent/non-emergent inpatient procedures at 50% of pre-shutdown volume and inpatient visits limited to one visitor (except in nursing homes where visitors are still prohibited). For additional information, see the webpage for Healthy at Work for Healthcare Facilities.

Minimum Requirements Applicable to All Reopenings. Healthy at Work continues 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. 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:

May 9, 2020:
Places of WorshipSpecific requirements

May 11, 2020:
ConstructionSpecific 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 businessesSpecific 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 care, grooming and boardingSpecific 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 dealershipsSpecific requirements

May 18, 2020:
• Government Offices / AgenciesSpecific Requirements

May 20, 2020:
Funeral and Memorial ServicesSpecific Requirements
Retail – Specific Requirements

May 22, 2020:
Restaurants, with limited 33% capacity plus outdoor seating – Specific Requirements
• Group of 10 people or fewerSpecific Requirements
Travel Ban LiftedOrder.

May 25, 2020:
Barbershops/Cosmetology/Hair SalonsSpecific Requirements
• Massage TherapySpecific Requirements
• Nail SalonsSpecific Requirements
• Tanning SalonsSpecific Requirements
• Tattoo ParlorsSpecific Requirements

June 1, 2020
• Auctions – New! Specific Requirements
Auto/Dirt Track Racing – New! Specific Requirements
Aquatic CentersSpecific Requirements
Bowling AlleysSpecific Requirements
Fishing Tournaments – New! Specific Requirements
• Fitness Centers – New! Specific Requirements
Kentucky State Park Lodges
• Movie Theaters – New! Specific Requirements
Salato Wildlife Education Center

June 8, 2020

  • Educational and Cultural Activities
    o Aquariums
    o Distilleries
    o Libraries
    o Limited Outdoor Attractions
    o Museums
  • Horse Shows
  • Some Childcare (in-home programs) – Specific Requirements

June 11, 2020
Kentucky Horse Park
• Kentucky State Park Campgrounds
• Otter Creek

June 15, 2020
• Some Child-Care (center-based programs, day camps) – Specific Requirements
• Youth Sports (low touch and outdoors) – New! Specific Requirements

New! June 29, 2020
• Bars
• Groups of 50 people or fewer
New! Youth Sports (Expanded Activities)Specific Requirements

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.

Self-Certification Social Distancing for Parents or Guardians of Children in Child Care Centers

The Kentucky Cabinet for Health and Family Services published a Self-Certification form requiring parents or guardians of children attending child care centers to certify their compliance with certain social distancing and prevention requirements. Child care centers are to retain a copy of the completed self-certification in each child’s record. Other requirements for the phased reopening of childcare programs can be found here.

“Back on Track” – A Roadmap to Safely Reopen Indiana

Updated May 28, 2020

by Kathie McDonald McClure, Partner, and Joseph Profancik, Summer Associate

On May 1, 2020, Governor Eric Holcomb announced his plan to get Indiana Back on Track. After nearly eight weeks of shutdowns and isolation, Indiana has decided to move forward with a measured and data driven approach to reopen the economy. This approach involves the application of four guiding principles that Governor Holcomb says will assist a safe sector-by-sector reset of the state’s economy.

First, the number of hospitalized COVID-19 patients state-wide must decrease for 14 days. Indiana achieved this milestone prior to the Governor’s speech on May 1st. Second, the state must retain its surge capacity for critical care beds and ventilators. Currently, state-wide ICU bed and vent availability has remained above 40% and 70% respectively for the last 2 weeks. Third, the ability to test anyone who is COVID-19 symptomatic. To help in the early detection of new cases, the state partnered with OptumServe to add testing locations in strategically located parts of the state and, as of May 28, 2020, the Indiana COVID-19 website reflects 213 testing locations across the state. Finally, the fourth guiding principle is the ability to contact all individuals who have tested positive for COVID-19 and expand contact tracing. In Indiana Contact tracing began on May 11th, and over 500 tracers have been onboarded.

With these guiding principles in mind, Governor Holcomb laid out a 5-stage roadmap for reopening Indiana with the goal of having the state back on track by July 4th – Independence Day. As of May 28th, 2020, per Governor. Holcomb’s Executive Order 20-28, Indiana is in stage three of the roadmap. This Executive Order sets forth the best practices that Hoosier residents, businesses, organizations and others are to follow in stage three in addition to industry specific guidelines. Continuation into the next stage will be determined by whether or not the key principles of health remain positive. The roadmap is subject to change based on CDC guidance and new information.

Stage one (March 24th – May 4th) involved the closure of all non-essential businesses, schools, and retail stores. All Hoosiers were encouraged to stay home, maintain social distancing, and not participate in social gatherings with more than 10 people.

Stage two (May 4th – May 21st) allowed for the reopening of several business sectors, including personal services such as hair salons, barber shops, and spas. Restaurants and bars were also reopening at 50% capacity, along with retail stores and indoor common areas. Religious services were allowed to convene and asked to consider guidance provided by the state to safely worship. Meanwhile, those who worked in office settings were encouraged to continue to work remotely.

Stage three (May 22nd – June 13th) allows for social gatherings of up to 100 people or less to take place so long as they follow social distancing guidelines. Various other businesses may reopen in this stage including:

  • Retail stores at 75% capacity
  • Gyms
  • Community tennis and basketball courts
  • Community pools
  • Campgrounds
  • Youth summer day camps
  • Daycare facilities
  • Raceways with no spectators

Stage four (projected to begin June 14th) allows for social gatherings of up to 250 people or less to take place so long as they follow social distancing guidelines. Nursing homes will remain closed to visitors and Hoosiers 65 and older are asked to remain cautious at work and in their communities. Additional businesses may reopen in this stage including:

  • State government buildings
  • Professional office buildings at full capacity
  • Retail stores at full capacity
  • Dining room service at 75% capacity
  • Bars and nightclubs at 50% capacity
  • Cultural, entertainment, and tourism sites may reopen at a capacity to be determined
  • Movie theaters and bowling alleys at 50% capacity
  • Youth and adult recreation games may resume
  • Raceways may open to spectators
  • Pari-mutuel horse racing with no spectators
  • Charity gaming and casinos (subject to approval by Indiana Gaming Commission)
  • Amusement parks and water parks at 50% capacity

Stage five (projected to begin July 4th) allows all businesses to open at full capacity and restrictions to be lifted. Assisted living and nursing homes will continue to be evaluated during this time.

Governor Holcomb has issued specific industry guidelines that should be closely adhered to throughout the Back on Track reopening process. For additional information and updates regarding the Back on Track plan, please visit https://www.backontrack.in.gov/

State Launching Online Tracking System for COVID-19 Contact Tracing

by Partners, Tyson Gorman and Kathie McDonald-McClure and Summer Associate, Joseph Profancik

Editor’s Note: This article was supplemented by notes that were taken during the May 21, 2020 webinar provided by the Kentucky Chamber of Commerce, featuring Governor Beshear and Mark Carter, discussing plans for the launch of the State’s contact tracing program.

While speaking virtually to the Kentucky Chamber of Commerce, Gov. Beshear noted that the initial models suggested as many as 80,000 Kentuckians could be infected by COVID-19. However, he said Kentuckians’ social distancing and other positive efforts have flattened the curve. Gov. Beshear also stated that flattening the curve came at a cost, but he believes the economic hardship is only temporary. The reopening of the economy will help the recovery so long as we do it in a sustainable manner.

Testing and tracing will be critical to preventing a second outbreak. Gov. Beshear stated that we cannot politicize these two necessary steps. Our community and business leaders must promote testing and tracing so that we can protect each other. If there is an attempt to politicize these measures, the Governor asks that we push them aside. He said that both the National Governors Association and the White House are promoting the practice of testing and tracing as well.

Testing:

“We are at a place that we always dreamed that we would be,” said Gov. Beshear. As of May 21, 2020, Kentucky has enough capacity to do 2.5 times the White House recommended testing each month. The new challenge is getting people tested so that we can identify asymptomatic individuals. According to the kycovid19.ky.gov webpage, there are now over 150 testing locations throughout the state. The Governor urged everyone to get tested as Kentucky continues with reopening under the Healthy at Work plan. See our article, The Kentucky “Healthy at Work” Phased Reopening.

Tracing:

Contact tracing, which is funded through the CARES Act, is expanding to meet both the White House and Governor’s benchmarks for safely reopening the economy. On May 18, 2020, Gov. Beshear announced the appointment of Mark Carter as executive adviser leading the contact tracing efforts in the Office of the Secretary of the Cabinet for Health and Family Services (CHFS) and in coordination with the Department of Public Health. Carter said the expanded seven-month contact tracing program combines public participation and the power of technology to help public health officials and health care providers contain the spread of COVID-19. The information provided is kept completely private and confidential. Information regarding the individuals who have COVID-19 and people they have made in-person contact with recently is not released or made public.

Overview of Contact Tracing Process: 

Kentucky is not currently using a COVID-19 contact tracing mobile app as part of its tracing efforts, but rather is using human-led efforts to track the Coronavirus in the community.  Employed individuals in the program will utilize contact tracing technology to collect and manage the data essential to identifying individuals exposed to COVID-19 in order to reduce the risk of transmission in the community. Most individuals with COVID-19 are entered in the contact tracing technology via reports by healthcare providers who are responsible for reporting all positive COVID-19 tests to their local health departments. The local health department will enter COVID-19 positive cases into the contact tracing technology for follow-up by the contact tracing team.

Three key positions will carry out the mission of the contact tracing program: Disease Investigators; Contact Tracers; and Social Support Coordinators. The Disease Investigator is responsible for calling individuals who have COVID-19, confirming their lab results, verifying their isolation needs, and asking about potential contacts. The Contact Tracer is responsible for calling the individuals who have been exposed to COVID-19, providing information, and accessing their risks. The contacts will be classified as low, medium, or high risk, dependent upon the extent of the contacts. This will help determine whether or not the contact should be isolated for a period of 14 days. Carter emphasized that the identity of the COVID-19 patient will not be disclosed to the individuals with whom that patient has been in contact. Finally, the Social Support Coordinator helps support indicated needs of individuals who must self-isolate, such as food, child-care and contacting employers. Although several of the key positions have been onboarded already, Carter said that additional applicants are being sought.

Business Community Support is Critical

Both Governor Beshear and Carter said that the cooperation of businesses will be critical to the success of the contact tracing program. Businesses should make their employees aware that they may be contacted by a public health worker to gather information regarding a COVID-19 patient. Employers can also help employees understand the importance of answering that public health worker’s call.  Carter said that the role each employee plays in contact tracing is critical to protecting the ones we care about, our friends, family and co-workers. Employers should help employees understand that the focus of contact tracing is on keeping folks well. Carter used the following slide to lay out the key roles employers play in contact tracing:

Picture1The public can watch a video illustrating how Kentucky’s contact tracing program will work. The state has provided the following additional resources helpful to employers in emphasizing to employees the important role that contact tracing plays on containing the virus to keep Kentuckians safe and businesses open:

 

Questions and Answers from the Kentucky Chamber of Commerce Webinar:

What happens to the data from tracing and who has access to it?

Flexibility has been added to HIPAA to balance privacy protections while ensuring that health care providers appropriately share information with the CDC, family members of patients, first responders and others, to help address the COVID-19 emergency.  Contacts will only be informed that they may have been exposed to a patient with the infection, and the name of the patient will not be disclosed to the contacts. The information will be destroyed in accordance with relevant regulations.

If someone comes in contact with me and I am contacted by a contact tracer who asks me to stay home from work, could I be eligible for unemployment once again?

The unemployment insurance coverage was expanded by executive order.  However, the Governor’s Office is continuing to look into an executive order to address this specific issue.

How can people apply for these positions?

There will be a link on the kycovid19.ky.gov website which provides staffing agencies that help identify candidates based upon region. Hopefully this link will be up by the close of business May 22, 2020.

How are we addressing schools specifically?

School districts have been asked to come up with plans for several different scenarios that can be anticipated. The Governor met with several district officials on May 21, 2020 to discuss implementing a similar plan tailored for schools.

How will contact tracing apply to healthcare workers?

Most healthcare providers have their own testing procedures. However, the same mechanism for contact tracing will apply.

In a Kentucky Chamber poll, 81% of respondents said that they are ready to return to normal.

Despite the desire to return to “normal,” as Governor Beshear has emphasized in his daily 5PM updates, until there is an effective vaccine readily available to everyone, Kentuckians cannot let up the good work they have done so far to help contain the virus. For the duration of the state of emergency, businesses should follow both the Minimum Requirements that apply to all businesses, organizations and recreational activities as well as the additional applicable specific requirements as set forth on Kentucky’s Healthy at Work webpage.

Indiana’s Back On Track Plan to Reopen State Economy

by Kathie McDonald-McClure

On May 1, 2020, Governor Eric Holcomb announced a 5-state roadmap to get Indiana “Back on Track” by July 4, 2020, Independence Day.  Since March 24, 2020, the state had been in Stage 1, with only essential manufacturing, construction, infrastructure, government, business, healthcare and other critical businesses and operations remaining been open, while K-12 school buildings were closed and all their activities were canceled.  Indiana is currently in Stage 2 which it began rolling out on Monday, May 4, 2020, by lifting restrictions in the following areas: travel restrictions lifted; social gatherings of up to 25 people allowed (subject to CDC social distancing guidelines); manufacturers, industrial and other infrastructure operations that had not been operating as essential business allowed to reopen; retail and commercial businesses allowed to reopen at 50% capacity; shopping malls allowed to reopen at 50% capacity with indoor seating limited to 25% capacity.

On May 11, 2020, the state continued to roll-out Stage 2 by easing the following restrictions: restaurants and bars that serve food allowed to reopen at 50% capacity (but bar seating to remain closed); personal services (hair salons, barber shops, nail salons, spa and tattoo parlors) by appointment only.  Hoosiers 65 and over and those with high-risk health conditions – who are the most susceptible to the coronavirus – should remain at home as much as possible.  Anyone working in an office setting are encouraged to continue working remotely preferably at home where possible.

On May 24, 2020, the state will move to Stage 3 which will include an easing of restrictions on the following businesses and operations, provided health indicators remain positive: Social gatherings of up to 100 people may occur; retail stores and mails may move to 75% capacity; movie theaters may open at 50% capacity and mall common areas (food courts and sitting areas) may move to 50% capacity; playgrounds, tennis courts, basketball courts, pools, campgrounds and gyms and fitness centers may open with restrictions and social distancing.  Individuals at risk, including those over 65, may venture out cautiously. Those who can work remotely should continue to do so.

Indiana’s Back on Track reopening plan incorporates a “Back on Track Engine”, a 3-pronged approach to stay ahead of COVID-19 through testing, contact tracking and adequate personal protective equipment (PPE).  Visit the Back on Track Indiana website for additional details including Industry Specific Guidance, Small Business PPE Marketplace hub, and Places of Worship guidance and more. The Governor has continued to emphasize that its Back on Track roadmap is subject to change depending on health indicators and as more is known about the coronavirus disease.

Kentuckians Given More Flexibility to Gather Over Memorial Day Weekend

On May 14, 2020, Governor Beshear announced a decision to advance the date for gathering in groups of up to 10 people beginning May 22, 2020, the Friday ahead of Memorial Day.  Recognizing that many Kentuckians have family members across state boarders with whom they may want to visit over the holiday weekend, the Governor also announced that the state’s travel ban will expire on the same day.

Kentucky Governor Announces Reopening Guidance for Restaurants

On May 14, 2020, Governor Beshear announced that the state has now posted initial guidance for restaurants as they reopen, but the Governor said he is still seeking feedback from those in the industry.  The Healthy at Work website now includes retail and restaurant guidance.  For additional information on Kentucky’s Healthy At Work phased reopening plan, see the article prepared by Kathie McDonald-McClure which has been updated for these developments.

EEOC Questions and Answers for Reopening Employers

By Julie Laemmle Watts

The Equal Employment Opportunity Commission (“EEOC”) continues to update its guidance for employers in its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” questions and answers on a host of topics, including topics that are important for employers who are beginning the process of reopening. Some of these topics include: Disability-Related Inquiries and Medical Exams; Confidentiality of Medical Examination; Reasonable Accommodation; and Return to Work. Click here to read more.

Kentucky Healthcare Phased Reopening Continues

As reported last week, Kentucky healthcare providers and facilities entered Phase III of the healthcare reopening on May 13, 2020. Under this schedule, healthcare providers were permitted to resume non-emergency/non-urgent inpatient surgeries and procedures at 50% of their pre-COVID-19 shutdown volume. All providers must continue to follow strict rules and procedures meant to mitigate the risk of transmission of COVID-19, including limiting visitors, but healthcare facilities may now permit a patient to have one visitor, provided that visitor is adequately screened and wears a face mask while in the facility. Phase IV, permitting facilities to resume non-emergent/non-urgent inpatient surgery and procedures at the volume determined by the facility, is scheduled to begin on May 27, 2020. Providers can find information on each Phase of the reopening here.