Kentucky Phased Resumption of Group Activities, Communal Dining, Off-Site Appointments and Visitation at LTC Facilities

On June 25, 2020, the Kentucky Cabinet for Health & Family Services (CHFS) provided guidance to long term care providers concerning the resumption of certain activities. Beginning June 29, all long term care facilities may resume recreational and therapeutic group activities, communal dining, and transportation for non-emergent off-site appointments—as long as certain prerequisites are met and safeguards are in place.  Assisted Living Communities, Licensed Personal Care Homes and Family Care Homes may resume limited visitation starting June 29, while Skilled Nursing Facilities (SNF), Nursing Facilities (NF), Nursing Homes (NH) and Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICF-IID) may start limited visitation on July 15.  For additional details, please refer to  Phased Reduction of Restrictions for Long Term Care Facilities.

Update on Kentucky Reopening: Phase III Reopenings Begin – “Healthy at School” Reopening Plan Announced

(Updated with information available from the Governor’s Office as of June 26, 2020 at Noon)

by Kathie McDonald-McClure, Partner

On Monday, June 22, 2020, during his coronavirus update, Governor Andy Beshear announced that Kentucky will begin Phase III of the White House reopening plan during the novel coronavirus 2019 (COVID-19) public health emergency (PHE).  (See below “New! Phase III Reopening”.) The Governor said, “Next Monday, just about everything in the Commonwealth will be open, from bars, wedding venues, public pools and even Kentucky Kingdom.” He continued, “It has been a long road dealing with this virus. But by following medical guidelines we have gone from a time when our cases were doubling every week, to a point where we are safely beginning to reopen businesses and our economy.”

It has been a long road indeed.  Kentucky was one of the first states to declare a state of emergency on March 6, 2020.  Then, on March 26, 2020, 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.  Kentucky has been 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.

New! Phase III Reopening.  On Monday, June 29, 2020, people can begin gathering in groups of 50 or fewer people. Adherence to rules on social distancing, mask use and sanitation remains critically important, and people in more vulnerable categories should continue to avoid such gatherings.  Updated guidance has been posted on the Healthy at Work website for many venues, including restaurants and bars. There also is new guidance covering wedding venues and event spaces and gatherings of 50 or fewer people. Finally, specific requirements were updated to allow for up to 50% capacity effective June 25, 2020, for barbers/cosmetologists/hair salons, massage therapy, nail salons, tanning salons and tattoo parlors.  Links to the updated requirements are in the timeline below.

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.

On June 22, 2020, Dr. Steven Stack, Kentucky’s Commissioner of Public Health, continued to emphasize the importance of following the Minimum Requirements during Kentucky’s Phase III reopening. “Despite reopening, there are small things we have to do until we get a vaccine or treatment,” Dr. Stack said. “Continue to socially distance, wear face masks, wash hands frequently and do temperature screenings at work and places of business.” Dr. Stack said using face masks and getting tests are crucial in keeping the virus under wraps.

Dr. Stack continues to stress the importance that Kentuckians follow the Minimum Requirements. During the Governor’s June 22nd update, he stated, “This is a dangerous disease. We are seeing in other states dramatic surges in virus cases”  He said, “The increase is not just about testing more, it’s about hospitals needing to admit more people, and having to treat more people.”

While all entities and activity organizations should carefully review the Minimum Requirements (EnglishEspañola), the Healthy at Work webpage summarizes them as follows:

image-1

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 at work and at other activities.  Dr. Stack has previously asked employers to make accommodations for those who fall into high risk categories for whom COVID-19 can be deadly.

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 is in place for each business or activity on the Governor’s Healthy at Work webpage.  The timeline for reopening each business sector and the industry-specific requirements for each business sector or activity, even if operations did not cease 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 racingnot including the rescheduled Kentucky Derby (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 Revised Specific Requirements for 50% capacity as of June 11

May 18, 2020 – Order

May 20, 2020 – Order

May 22, 2020 – Order

  • New! Restaurants Only (up to 50% capacity + Outdoor Seating effective June 22, 2020) – Specific Requirements 2.0
  • Group of 10 people or fewer – Specific Requirements effective through June 28, 2020 New! Groups of up to 50 can gather beginning on June 29, 2020 (see below)
  • Travel Ban Lifted Order

May 25, 2020 – Order

New! Revised Specific Requirements 2.0 were issued to allow for up to 50% capacity effective June 25, 2020 for all of the following businesses.  See the “June 25, 2020” heading below for revised requirements.

  • Barbershops/Cosmetology/Hair Salons
  • Massage Therapy
  • Nail Salons
  • Tanning Salons
  • Tattoo Parlors

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% capacitySpecific Requirements

June 15, 2020

June 18, 2020 – New!

June 20, 2020 – New!

June 22, 2020 – New!

June 25, 2020 – New!

June 29, 2020

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

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 also a link to the Kentucky Chamber of Commerce webpage for businesses who need Personal Protective Equipment (PPE) such as hand sanitizer and masks.  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.

New! Healthy at School Reopening Plan.  On June 23, 2020, the Governor, Lt. Governor Jacqueline Coleman and Kevin Brown, the Interim Commissioner of the Kentucky Department of Education (KDE), announced the Healthy at School reopening plans. KDE’s “flagship” document for the reopening of schools is titled Guidance on Safety Expectations and Best Practices for Kentucky Schools (K-12).  Commissioner Brown said that the Guidance is designed to vest decision-making in each of the Commonwealth’s 172 local school districts.  He said this recognizes the state’s long tradition in trusting school districts to make decisions that are best for the students in their individual communities.

The Healthy at School Guidance focuses on the following five areas of safety and best practices:

  • Social Distancing
  • Cloth Face Coverings, School Health Policies and PPE
  • Screening and School Exclusion
  • Sanitation and Environmental Factors
  • Contact Tracking

In regard to the key safety requirements involving social distancing and wearing masks, Commissioner Brown stated that so long as students are positioned six feet from others when sitting in class, the mask can come down. However, when students are seated less than six feet from other students or are in motion, the mask must be on. The motto used by the Commissioner to highlight when students should wear a mask was “When you move, you mask”.

Commissioner Brown highlighted the collaborative process by which the Guidance was developed, with input from the Education Continuation Task Force as well as the Governor’s Office, Department for Public Health, KDE, the Cabinet of Education and Workforce Development and the Cabinet for Health and Family Services.  He said that KDE will continue to seek collaborative input, including from student representatives, as school districts work towards implementing the recommendations and provide feedback.  He stated that additional guidance on pupil transportation, workplace health and safety, facilities and logistics, Career and Tech, Exceptional Learners and Performance-Based Instruction will be released over the coming month.

To review and stay abreast of all Healthy at School guidance documents and announcements, go to KDE COVID-19 Reopening Resources.

New! Traveling to “hot spots” in other states results in positive COVID-19 cases.  During the Governor’s June 24, 2020 update, Dr. Stack said that the Public Health Department had identified two clusters of positive COVID-19 cases among Kentuckians who had traveled to Myrtle Beach, South Carolina in recent weeks.  In one cluster, 9 of 12 travelers to Myrtle Beach tested positive for COVID-19 after developing symptoms within four days of their return to Kentucky.  Dr. Stack said that individuals in a second cluster of Kentuckians who traveled to Myrtle Beach also are testing positive for COVID-19.  He said that another individual who was not part of these two clusters but who also recently traveled to Myrtle Beach had tested positive for COVID-19 as well.

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 by Kentuckians who let their guard down as a result of the reopenings whether in the Commonwealth or when traveling to other states.

For the latest information on Healthy at Work, click here.  For the latest information on Healthy at School, click here. For the latest information on COVID-19 in Kentucky, go to kycovid19.ky.gov.

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:

image-1

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.

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.

Update on Kentucky’s “Healthy At Work” Reopening

(As of Noon, June 5, 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.  While all entities and activity organizations should carefully review the Minimum Requirements (EnglishEspañola) , the Healthy at Work webpage highlights the following requirements:

image-1

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!”):

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 – Specific requirements

May 18, 2020:

May 20, 2020:

May 22, 2020:

May 25, 2020:

June 1, 2020

June 8, 2020

  • Educational and Cultural Activities – New! 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 – New! Specific Requirements
  • Some Childcare (in-home programs) – Specific Requirements

June 11, 2020

  • Kentucky Horse Park
  • Kentucky State Park Campgrounds

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.

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:

image-1

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.