Kentucky Supreme Court Blocks Attorney General’s Efforts in a Lower Court to Void Governor Beshear’s COVID-19 Executive Orders

On Wednesday, July 15, 2020, Attorney General Daniel Cameron filed a motion in the Boone County Kentucky Circuit Court seeking to invalidate all executive orders issued to date by Governor Andy Beshear directed at containing the spread of COVID-19, a highly contagious disease that prompted the declaration of a national public health emergency as well as a state of emergency in Kentucky.  In his July 16th update on COVID-19, Governor Beshear said that Cameron’s actions would void:

  • Healthy at Work requirements;
  • expanded workers’ compensation eligibility for workers – including first responders, active military and grocery store employees – who are ordered to quarantine as a result of exposure; and
  • a measure that waives copays, deductibles, cost-sharing and diagnostic testing fees for private insurance.

Cameron’s motion also would have voided all COVID-19 orders and directives applicable to healthcare providers that had been issued from the Governor and the Secretary for the Cabinet for Health and Family Services. On Friday morning, July 17th, the Courier-Journal was reporting that the Boone County judge indicated late Thursday evening that he would side with Cameron.  However, by Friday afternoon, as reported by the Courier-Journal, “The Kentucky Supreme Court has temporarily halted a Boone County judge’s ruling blocking all of Gov. Andy Beshear’s past and future public health orders responding to the COVID-19 emergency.”

For Governor Beshear’s roadmap to safely reopen Kentucky, dubbed “Healthy at Work”, go to https://govstatus.egov.com/ky-healthy-at-work.  To keep up with developments in Kentucky and the efforts of Governor Beshear to contain the spread of COVID-19 in Kentucky, go to www.kycovid19.ky.gov.

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:

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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 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.

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.

The Kentucky “Healthy At Work” Phased Reopening

Updated May 22, 2020, by Kathie McDonald-McClure, Partner, and Joseph Profancik, Summer Associate

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.

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, in addition to industry specific, guidance, each entity reopening must meet certain “Minimum Requirements” attached to that Executive Order. While all entities should carefully review the specific requirements, in summary they are as follows:

As emphasized by the Governor, compliance with the above 10 Rules is essential to protect employees in all business and organizational sectors – both healthcare and non-healthcare – as well as to protect the individuals with whom employees may come into contact with both inside and outside of the work environment. 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.

The Minimum Requirements are applicable to all businesses, both those that are reopening and those that have continued to operate throughout the COVID-19 PHE. Kentucky’s Healthy at Work webpage contains links to several resources businesses can use to help implement the Minimum Requirements, including a link to obtain PPE, signage for employees and customers, and 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 question on how the Commonwealth is reopening the state’s ,economy under the Healthy at Work plan.

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:

May 11, 2020:

  • Construction – Specific requirements
  • Manufacturing, distribution and supply chain businesses – Specific requirements
  • Vehicle or vessel dealerships – Specific requirements
  • Office-based businesses (at 50% pre-pandemic 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
  • Horse racing (no fans in attendance) (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, e.g., racetrack employees, trainers, assistant trainers, exercise riders, grooms, hot walkers, jockeys, veterinarians, farriers, and feed vendors) – Specific requirements
  • Pet care, 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

May 18, 2020:

May 20, 2020:

May 22, 2020:

May 25, 2020 (Memorial Day):

June 1, 2020

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

June 8, 2020

  • Educational and Cultural Activities
    • Aquariums
    • Distilleries
    • Libraries
    • Limited Outdoor Attractions
    • Museums
  • New! Horse Shows
  • New!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) – New! Specific Requirements
  • Youth Sports (low touch and outdoors) 

July, 2020

  • Bars
  • Groups of 50 people or fewer

The Governor emphasized that all these businesses must follow the Minimum Requirements, as well as their own industry, organization or activity specific guidance. Information on specific requirements not yet posted are in development and will be announced during the Governor’s daily updates once they are available. The Governor encourages industry groups, trade associations, and individual businesses to submit reopen proposals, discussing strategies and challenges they face in safely reopening. Your proposals will aid the Governor and the Department for Public Health in evaluating at what point different types of businesses may reopen safely. All proposals will be evaluated according to White House guidelines and other public health criteria. This step will ensure that Kentucky businesses are able to comply with public health protocols and CDC guidelines.

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 letting their guard down as a result of the reopenings.

Criteria for Healthcare Workers to Return to Duty

March 27, 2020

The Centers for Disease Control has published guidance for allowing healthcare workers to resume work after a positive test result or suspicion of infection. The guidance provides two approaches to approve an employee’s return: either two negative tests for an employee who is fever free and has improved respiratory symptoms; or 72 hours have passed since recovery and at least seven days have passed since onset of symptoms. The guidance, incorporated in a notice from the Kentucky Department of Public Health, also describes precautions that should be taken following the employee’s return to work. To learn more, click here.