Coronavirus News

Governor Beshear Issues New Restrictions at Targeted Areas to Curb A Third Wave of the Coronavirus

By Kathie McDonald-McClure

On Wednesday, November 18, 2020, Governor Beshear announced new restrictions aimed at controlling the spread of COVID-19 during a third wave of the disease with the potential for exponential growth due to the upcoming Thanksgiving holiday and the cooler weather that leads to spending more time indoors.  As the Governor explained, the new restrictions do not attempt to categorize businesses or activities as essential versus non-essential.  Rather, utilizing increased knowledge of how COVID-19 spreads, these restrictions are “surgical” in that they target high risk activities with the goal of slowing the spread of the virus  to better protect Kentuckians.  

In particular, as stated in two new Executive Orders here (businesses/social gatherings) and here (schools) setting forth the new restrictions, scenes where people gather as well as close contact in enclosed spaces present the greatest risks:

“The Centers for Disease Control and Prevention (CDC) has concluded that COVID-19 most commonly spreads during close contact between people, and can sometimes be spread through airborne transmission, particularly among individuals in enclosed spaces. As a result, scenes of emergency exist where people gather together, potentially spreading COVID-19.”

These new restrictions range from three to six weeks in duration, most taking effect at 5:00 pm on Friday, November 20, 2020, and target six high risk areas. The Governor said, “We’re asking everybody in these targeted areas to do this at the same time so we get our maximum impact. If we’re going to take a swing at this virus, we want to make sure we swing hard enough to truly impact its direction and stop exponential growth.”

As to whether there could be a “shutdown,” the Governor said, “I don’t think another shutdown is on the table. We know so much more about the virus. Our economy is today open. Certainly, it’s impacted by this virus but it’s the virus that truly impacts it. And it’s going to remain open as long as we make surgical and targeted decisions that can have the maximum impact in reducing the spread of the virus. That’s what we’re doing now and that’s what we’ll continue to do.” 

The six areas targeted by the Governor’s two new Executive Orders are covered below.  One Executive Order covers the first five targeted areas.  The other Executive Order covers the sixth targeted area, schools.

Target Area One: Indoor Social Gatherings.

Beginning Friday, November 20, 2020, at 5:00 pm through Sunday, December 13, 2020, at 11:59 pm local time, private gatherings are limited to “your current household plus one other household not to exceed a total of 8 people.”  The Governor said, “Your household means who you live with on a regular basis.”  You can have one other household over, not to exceed 8 people.  The Governor added, “Two households means two immediate families, not extended families, per gathering.”

In explaining the reason for further limiting private gatherings, Governor Beshear said, “We see far too much of the virus happening at family gatherings and neighborhood events, the result being multiple family members of a household being hospitalized.”  He continued, “We see so much spread when people get together otherwise in larger groups, they get comfortable and end up taking their masks off. Every local health department can tell you heartbreaking stories about what is happening at these events.”

Target Area Two:  Indoor Venues, Events Spaces and Theatres.  

Indoor venues, event spaces, and theaters are limited to 25 people per room. This limit applies to indoor weddings and funerals. As with indoor Social Gatherings, this is effective from Friday, November 20th at 5:00 pm through Sunday, December 13th at 11:59 pm.  Governor Beshear said that “we continue to see significant virus spread” at weddings and funerals.  This restriction does not apply to in-person services at places of worship. While the Governor said that he was meeting with faith leaders separately to make recommendations, his new Executive Order refers places of worship to follow the Guidelines for Places of Worship available online at the webpage for Healthy at Work guidance and related executive orders.

Target Area Three:  Restaurants and Bars.  

Also beginning on Friday, November 20th at 5 pm and lasting until Sunday, December 13th at 11:59 pm, bars and restaurants are to be closed for indoor food and beverage service. Carry-out or “to go,” delivery and outdoor seated service may continue but only if the mask mandate and seating rules are enforced. Specifically, outdoor service requires that all customers be seated at tables, table size be limited to a maximum of eight (8) people from a maximum of two (2) households, and tables be spaced a minimum of six (6) feet apart. A “household” is defined as individuals living together in the same home. The Executive Order adds that this new restriction “applies to indoor dining facilities at retail locations, including food courts.” The Governor cautioned that “packed patios will result in further changes on what these venues can and cannot do.”  

Per the Governor, “The CDC, John Hopkins and Stanford University working with others all have released recent studies showing that restaurants and bars are spreading, if not the greatest spread, of COVID-19. Any effort to lessen the exponential growth we’re seeing right now requires this step.”  The Governor said that Kentucky’s local health departments agree that they’re seeing spread at these restaurants and bars.  As one example among others, he referred to data provided by Matt Hunt, the Director of the Barren River District Health Department, showing his district has 46 total COVID-19 clusters impacting 189 COVID-19 cases that arose out of gatherings at restaurants and bars.  The district currently has 13 open COVID-19 clusters impacting 52 open COVID-19 cases. 

In the answer to a reporter’s question, the Governor said that heated tents “are allowable only if you can create the space that’s necessary, if you can create the space between tables, and [a tent is] limited to parties from two different households.”

Team Kentucky Food & Beverage Relief Fund.Recognizing that this restriction will create financial stress on Kentucky owned and operated restaurant and bar owners, the Governor has allotted $40,000,000 from the CARES Act relief funds to establish the Team Kentucky Food & Beverage Relief Fund (“R&B Relief Fund”) to provide assistance to restaurants and bars impacted by this restriction. This Fund will be administered by the Public Protection Cabinet, which is currently finalizing Applications that will be accepted online from November 30, 2020 through December 18, 2020.  While the Public Protection Cabinet will be providing additional information, key eligibility criteria include:

  • The Applicant must be operating as a bar and restaurant currently.
  • The Applicant will be eligible for $10,000 in assistance. If a business is operating more than one location, the maximum award available will be $20,000 per business entity. 
  • A business with at least 50% of its sales via Drive Thru will not be eligible. 
  • The business may not be owned by a publicly traded company. 

Target Area Four: Gyms, Fitness Centers and Pools.

During the same approximate 3-week period from Friday, November 20th through December 13th, gyms, fitness centers, bowling alleys, pools, bathing facilities and similar indoor recreational businesses are limited to 33% of maximum permitted occupancy.  Masks must be worn while exercising.  Individuals who are not from the same household must maintain six (6) feet of space between each other.  Training facilities must be closed to group practices for sports teams, including cheerleading team practices.  Individual lessons, however, may continue but masking is required.  The Governor said, “Group classes are prohibited where we see significant spreading. Indoor team practices and competitions are prohibited.” He continued, “We’ve seen cases come out of numerous cheerleading gyms and martial arts studios. This is about a 3-week and several day effort to make sure we get this virus under control so these types of events are safer.” 

Target Area Five: Professional Services and Office-Based Businesses. During the same time frame, as set forth in his Executive Order, the Governor said that “our professional services and our office-based businesses are to have all employees who are able to, work from home. When possible, [these] businesses should close to the public and, if open, maintain 33%, at most, of their employees in their facility at one time.”

Target Area Six:  Schools

The Governor said, “This virus will overwhelm each and every one of our schools if we do not take action. Right now, if you take the number of students quarantined last week plus the number we expect this week, we’ll have 10,000 students in quarantine and about 2,000 of our faculty [in quarantine].” He continued, “If we are going to be able to provide meaningful educational experiences, and in person, especially at the beginning of next semester, we have to take action now, at the same time.”  

Beginning Monday, November 23, 2020, all public and private K-12 schools will cease in-person instruction and move to remote learning. Middle and high schools will remain in remote instruction until at least January 4, 2021, in other words, through this semester.  Elementary schools may reopen December 7, 2020, if their county is not in a Red Zone County and if they follow the Healthy at School guidance.  The Governor said, “It is our hope, and we’ll make every effort, to ensure that in January we have the opportunity to return to in-person instruction.” He said that, at Thanksgiving, if there ends up being 10 or more people at the home of a student or teacher “the impact could be devastating on schools.”   

Governor Beshear said that public universities have all made the decision to teach 100% virtually starting on Monday, November 23, 2020.  He said that his administration has asked private universities and colleges to do the same and that while most of them will be observing 100% virtual instruction by Thanksgiving, “we’ve asked them to move that timeline up” to November 23rd.

Healthcare.  The new restrictions do not require hospitals to curtail their elective procedures although the Governor noted that many are already doing it on their own when necessary due to a real potential of being overwhelmed. 

Retail.  The Governor noted, “We’re also not restricting retail any further. That is based on a commitment [by retail] to re-up the mask mandate and the enforcement of it because we need every Kentuckian to do their part.”

For activities not listed in these new restrictions, business owners and organizations should follow the current guidance and related Executive Orders available at the Healthy at Work website. 

In wrapping up his announcement of the new restrictions, the Governor asked Kentuckians to protect each other, stating, “Now’s the time we make the decision in whether we’re going to let our fellow Kentuckians become sick and more of them die or we’re going to take a stand against a third wave of this virus.  These restrictions are necessary now.” He continued, “We cannot continue to let this third wave devastate our families. We owe more to our seniors than some of the ageism we’re seeing and saying, ‘well they’re already old’. No, no. We owe it to them, to those veterans at Thomson-Hood [Veterans Center] to fight for their lives. We owe more to those who are immuno-compromised, [who] are making it through this life even though it’s more challenging, than to say, [well] they already had pre-existing conditions. We owe more to each other than to try to deny or explain away something that is the third leading killer of people in the United States. [It’s trailing cancer as the third leading cause of death in America.] We’re at war. We need your help to win.  … This may be the last counter defensive we have to mount. Let’s make sure it’s effective by everybody, and I mean everybody doing their part.”

For a one-page flyer summarizing the New Restrictions effective November 20, 2020 through December 13, 2020, click here. For the complete slide deck containing the slides in this article, click here.

Kathie McDonald-McClure
Kathie McDonald-McClure leads the Firm’s Data Privacy & Security Service Team and is a member of the Health Care Service Team. She regularly advises on compliance with laws prohibiting kickbacks and regulating provider referrals. She counsels clients on chronic care and population health management initiatives aimed at reducing health care costs. She often advices on HIPAA, GDPR and state data breach laws and on electronic data collection and tracking practices. Other areas of advice include... Read More