by Kathie McDonald-McClure, Partner

On January 27, 2020, the White House administration declared a public health emergency (PHE) due to the novel coronavirus (COVID-19).  On March 6, 2020, Governor Beshear declared a state of emergency, making it only the fifth U.S. state to do so. On March 26^th, Governor Beshear, following the advice of public health officials, implemented Healthy at Home, under which the Governor issued daily COVID-19 updates, information and advice, along with executive orders with healthcare, business and activity restrictions aimed at ensuring social distancing to protect Kentuckians and protect the state’s health care operations.

As we previously reported, on May 22^nd,  the Governor began a phased approach to reopen Kentucky’s economy and to loosen restrictions related to gatherings, sports, events, and other non-business activities.  On June 22^nd, the Governor announced that Kentucky was ready to begin Phase III of the White House COVID-19 PHE reopening plan.  With Phase III, just about everything in the Commonwealth has been open, from restaurants, bars, wedding venues, public pools and even Kentucky Kingdom.  Businesses, activities and private gatherings are, and continue to be, subject to specific requirements tailored to the business or activity in order to maintain safety during the continuing PHE.

With Phase III, the Governor stated:

“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.”

Governor Beshear further stated that studies by the CDC, the University of Louisville and the University of Kentucky all showed that Kentuckians’ early actions saved thousands of lives.

However, while Kentucky appeared to be doing a good job containing COVID-19 with its phased approach to reopening our economy, other states that reopened earlier began experiencing significant surges in new COVID-19 cases. By mid-July, the White House COVID-19 Task Force had designated many of these states as “red zones,” including states that border Kentucky. In response to the surges in other states, on July 9^th, Governor Beshear issued a face covering mandate (discussed below).

Positive cases continued to increase and, by Sunday, July 19^th, Kentucky saw its highest total of positive COVID-19 cases: 911.  During his COVID-19 update on July 20^th, the Governor reported that Kentucky’s daily number of positive cases, as well as its rolling seven-day average positivity rate on COVID-19 tests, had jumped from around 2% in mid-March to about 4% in recent weeks. By July 23^rd, Kentucky’s positivity rate had risen to 4.9%.

On Monday, Governor Beshear took two additional measures in an attempt to blunt the growth of positive COVID-19 cases: 1) he rolled back gatherings by people outside of businesses and event venues from 50 people to 10 people (discussed below) and 2) he issued a travel advisory, urging Kentuckians not to travel to states with extremely high COVID-19 infection rates (discussed below). The Governor reminded Kentuckians that we may not see positive results from these additional measures for another 10-14 days due to the lag time between contracting the virus and developing symptoms that may prompt a person to get tested.  He advised Kentuckians that if cases are continuing to escalate at the end of that time, more drastic measures recommended by the White House COVID-19 Task Force to governors in “red zones” could be implemented, which includes closing bars and reducing restaurant capacity to 25%.

On June 24^th, the Governor reported 797 new COVID-19 cases and a COVID-19 Testing Positivity Rate of 5.28.  During his COVID-19 update on Friday, July 24, the Governor stated that if Kentucky does not see a stabilizing of the new positive cases over the weekend, additional measures will have to be taken next week.

Closed Bars and Reduced Restaurant Capacity.  On July 27, 2020, Governor Beshear announced new measures to stem Kentucky’s rising number of cases, stating: “Our state government and the federal administration have significant agreement on what we need to do right now to make sure we don’t turn into Florida, Texas, Arizona, so many other states going through what could be absolutely devastating for them.”  The following steps were announced:

• Bars will be closed for two weeks, effective Tuesday, July 28.
• Restaurants will be limited to 25% of pre-pandemic capacity indoors; outdoor accommodations remain limited only by the ability to provide proper social distancing.
• Public and private schools are being asked to avoid offering in-person instruction until the third week of August.

The Governor was joined Sunday, July 26^th, in Frankfort by Dr. Deborah Birx, the response coordinator for the White House Coronavirus Task Force. Dr. Birx advised that the growth in Kentucky’s COVID-19 cases and, especially, the Commonwealth’s rising test positivity rate required immediate action. Dr. Birx specifically recommended that the Kentucky’s bars close and indoor dining capacity be limited.

To view the order from the Kentucky Cabinet for Health and Family Services covering the new restrictions, which went into effect at midnight July 27^th, click here. To view the revised requirements restaurant capacity, click here.

Mandatory Face Covering Requirement.  The Governor’s Executive Order requiring all people in Kentucky to cover their nose and mouth with a face covering took effect on Friday, July 10, 2020, at 5:00 pm. The issue of wearing a face covering was so important to retail businesses that the Retail Industry Leaders Association had written a letter to every governor urging them “to require consumers who are not encumbered by a medical condition to wear masks when shopping or in public places.”

The face covering is required in situations that present a high risk of COVID-19 transmission. More specifically, face coverings are required:

“While inside, or waiting in line to enter, any: retail establishment; grocery store; pharmacy; hair salon/barbershop; nail salon/spa; tattoo parlor; child care facility; restaurant or bar (when not seated and consuming food or beverage); health care setting, or; any other indoor public space in which it is difficult to maintain a physical distance of at least six feet from all individuals who are not members of that person’s household;

“While waiting for or riding on public transportation or paratransit, or while riding in a taxi, private car service, or ride-sharing vehicle, or driving any of the above while customers are present; or

“While in outdoor public spaces in which the person cannot maintain a physical distance of six feet from all individuals who are not members of the person’s household and is not otherwise covered by previously issued guidance.”

Several exemptions apply, including for children who are 5 or younger and for any person with a disability, or a physical or mental impairment, that prevents them from safely wearing a face covering.  To read the Executive Order and additional exemptions, click here. The face covering order is effective for 30 days, through Sunday, August 9, and can be reviewed and subject to renewal at that time.

Advisory Against Traveling to States with High Infection Rates.  As we previously reported, the Kentucky Public Health Department (“PHD”) had previously identified clusters of Kentuckians contracting COVID-19 after returning from “hot spots” in other states. During the Governor’s June 24 and July 9 updates, Dr. Stack warned the public that the Public Health Department had identified several clusters of positive COVID-19 cases among Kentuckians who had traveled to Myrtle Beach, South Carolina and other COVID-19 “hot spots” for vacation.  One cluster of 12 travelers to Myrtle Beach resulted in at least 9 individuals testing positive for COVID-19.  They developed symptoms within four days of their return to Kentucky.

Throughout July, the Kentucky PHD continued to identify persons who had traveled to hot spots outside of Kentucky as testing positive for COVID-19.  As a result, the Governor issued a Travel Advisory that Kentuckians not go to states with a 15% or greater infection rate as identified on the Johns Hopkins University & Medicine Coronavirus Resource Center here.  As of August 4, 2020, the Travel Advisory applies to Alabama, Arizona, Florida, Idaho, Kansas, Nevada, South Carolina, and Mississippi. (On August 4^th, Georgia was removed and Kansas was added.) The Governor said that the list of states subject to the Travel Advisory will be updated as necessary. To stay abreast of the latest travel advisory states, visit the official Team Kentucky COVID-19 webpage (click here) and scroll to “Travel Advisory”.  He also explained that he issued an “advisory” rather than an “order” due to a federal court’s holding that his earlier travel restrictions needed to be framed more like Ohio’s, which had been in the form of an advisory.

Governor Limits Informal Gatherings to a Maximum of 10 Persons. As the Governor has frequently reminded the public during his COVID-19 updates, reopenings could be rolled back as needed to protect public health, especially if the Commonwealth’s progress in the fight against COVID-19 is threatened by increasing cases or individuals who are traveling to other states. And, indeed, on July 20, 2020, the Governor saw fit to roll back the 50-person limit on informal gatherings to a 10-person limit in order to protect Kentuckians in social settings, such as the backyard barbeque, where social norms combined with human nature lead people to let go of inhibitions, forego wearing masks, stand or sit closer to one another, hug, give high fives and pats on the back and otherwise not observe social distancing thereby increasing the risk of asymptomatic transmission.

The Governor’s July 20^th Executive Order states that it “does not apply to or otherwise restrict entities such as restaurants, in-person retail establishments, public-facing businesses, venue and events spaces, or other businesses permitted to reopen pursuant to other Orders of this Cabinet or another Cabinet, or Executive Orders. However, such entities must comply with the requirements set forth for those entities in applicable Orders.” (Emphasis added.)  The Order goes on to state that it does not affect the Governor’s Order on Mass Gatherings, which continues in effect, an order that essentially revised previous restrictions on mass gatherings that would have extended to faith-based organizations.

In conjunction with the new Order on gatherings, the Governor’s Office also posted new Guidance for Gatherings up to Ten (10) People which states: “If you host or attend a social, non-commercial gathering of up to ten (10) people under circumstances not explicitly addressed by other Healthy at Work guidance, please follow this document.”  (Emphasis added.)  During his COVID-19 update, in response to reporters’ questions, the Governor has clarified that the new 10-person limit applies to gatherings at a private residence, barbecues, picnics, and other gatherings of that nature.  Social gatherings, including weddings, that take place at a venue that is subject to specific requirements to reduce the transmission of the virus, can proceed so long as the event venue complies with the then current Venues and Event Spaces Requirements posted to the Governor’s Healthy at Work webpage.

Minimum Requirements Applicable to All Reopenings. 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 (English – Española), the Healthy at Work webpage summarizes them as follows:

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.  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.

Business & Activity Specific Guidance. The Governor has issued specific requirements tailored to the following types of businesses or activities:

Healthy at Work Guidance

• Auctions
• Barbershops / Cosmetology / Hair Salons
• Bars – Closed – Effective July 28^th per July 27, 2020 Order
• Bowling Alleys
• Construction
• Educational and Cultural Activities
• Aquariums – Distilleries – Indoor Entertainment Facilities – Libraries – Limited Outdoor Attractions – Museums
• Fitness Centers
• Funeral and Memorial Services
• Government Offices / Agencies
• Groups of 10 People or Fewer
• Horse Shows
• Manufacturing & Distribution
• Massage Therapy
• Movie Theaters
• Nail Salons
• Office Based Businesses (50%)
• Pet Grooming / Boarding
• Photography
• Places of Worship
• Restaurants (25%) Effective July 28, 2020
• Retail
• Some Childcare (center-based programs, day camps)
• Swimming and Bathing Facilities
• Tanning Salons
• Tattoo Parlors
• Vehicle and Vessel Dealerships
• Venues and Event Spaces
• Youth Sports and Athletic Activities (Low and High Touch)

The Governor’s Executive Orders related to business-specific and activity-specific guidance is available 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.

For the latest information on Healthy at Work, click here.  For the latest information on Healthy at School guidance documents and announcements, go to KDE COVID-19 Reopening Resources. For the latest information on COVID-19 in Kentucky, go to www.kycovid19.ky.gov.