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 22^nd 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 (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 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:

• Places of Worship – Up to 50% capacity as of June 10

May 11, 2020:

• Construction – Specific requirements
• Horse racing – not 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

• Government Offices / Agencies – New! Revised Specific Requirements for 50% capacity as of June 18, 2020

May 20, 2020 – Order

• Funeral and Memorial Services – New! Revised Specific Requirement for 50% capacity as of June 20, 2020
• Retail Businesses – New! Revised Specific Requirements for 50% capacity as of June 20, 2020

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

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

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  

• Places of Worship 2.0 – Up to 50% capacity – Specific Requirements

June 11, 2020

• Kentucky Horse Park
• Kentucky State Park Campgrounds
• Vehicle or Vessel Dealerships 2.0 – Up to 50% capacity – Specific Requirements

June 15, 2020

• Some Child care Programs(center-based programs, day camps) – Specific Requirements
• Youth Sports (low touch and outdoors) – Specific Requirements

June 18, 2020 – New!

• Government Offices / Agencies 2.0 (up to 50% capacity) – Specific Requirements

June 20, 2020 – New!

• Funeral and Memorial Services 2.0 (up to 50% capacity) – Specific Requirements
• Retail Businesses 2.0 (up to 50% capacity) – Specific Requirements

June 22, 2020 – New!

• Restaurants Only (up to 50% capacity + Outdoor Seating) – Specific Requirements

June 25, 2020 – New!

• Barbers/Cosmetologists/Hair Salons 2.0 (up to 50% capacity) – Specific Requirements
• Massage Therapy 2.0 (up to 50% capacity) – Specific Requirements
• Nail Salons 2.0 (up to 50% capacity) – Specific Requirements
• Tanning Salons 2.0 (up to 50% capacity) – Specific Requirements
• Tatto Parlors 2.0 (up to 50% capacity) – Specific Requirements

June 29, 2020

• New! Bars and Restaurants (50% capacity) – Specific Requirements
• New! Gatherings of up to 50 people – Specific Requirements
• Public Swimming and Bathing Facilities – Specific Requirements
• New! Venues and Event Spaces – Specific Requirements
• Youth Sports (Expanded Activities) – Specific Requirements

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.