Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
NOTE: Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.
On March 28, 2020, Kansas Governor Laura Kelly issued Executive Order No. 20-16 establishing a statewide “Stay Home” Order (the “Order”) for Kansas to minimize the risk and spread of infection by COVID-19. The Order went into effect on March 30, 2020, and continues at least until April 19, 2020.
Like many other orders issued around the country, Kansans are directed to stay home unless performing an essential activity. The Order identifies five categories of essential activities:
- Obtaining food, medicine, or household necessities;
- Working, or traveling to and from work, at a business to perform an essential function as identified in the Kansas Essential Functions Framework (discussed below);
- Seeking medical care;
- Caring for children, family members, pets, or other vulnerable persons, in another location; and
- Engaging in outdoor activity, subject to social distancing guidelines (i.e., maintaining a distance of six feet and limiting gatherings to 10 or fewer people).
The Order expressly permits telework, telecommunications, and other at-home work and also permits travel to and from worksites to pick up equipment or supplies needed for telework, provided individuals follow appropriate safety protocols, including maintaining a six-foot distance and following other directives regarding social distancing, hygiene, and other efforts to slow the spread of COVID-19.
Critical Takeaways for Kansas Employers
1. Individuals and Businesses May Continue to Perform “Essential Functions” with Some Restrictions
The Order specifically exempts businesses that perform “essential functions” and allows such businesses to remain operational. The Order provides guidance to assist businesses in making the determination of whether they perform an essential function by reference to the Kansas Essential Functions Framework (KEFF). The KEFF was developed with reference to the U.S. Department of Homeland Security (DHS) critical functions guidelines established for pandemic and other disaster response efforts. The KEFF organizes business areas into a taxonomy and establishes four general categories of “essential functions:” Connect, Distribute, Manage, and Supply.
Individuals or entities that fall within one these four categories can perform essential functions without prior approval. However, individuals performing essential functions must: (1) telework to the extent possible to avoid in-person meetings; and (2) follow appropriate safety protocols for in-person or on-site work, including maintaining a six-foot distance and following other directives regarding social distancing, hygiene, and other efforts to slow the spread of COVID-19.
Connect. Businesses that provide the following essential functions can continue to operate:
- Information technology networks;
- Cable access network services;
- Internet based content information and communication services;
- Internet routing, access, and connection services;
- Position, navigation, and timing services;
- Radio broadcast and television access; and
- Satellite, wireless, and wireline access network services.
Distribute. Businesses that distribute, transport, or transmit the following can continue to operate:
- Supply chains for essential functions and critical infrastructure, as defined by DHS;
- Cargo and passengers by air, rail, road, and vessel;
- Materials by pipeline; and
- Passengers by mass transit.
Manage. Businesses that conduct, operate, develop, or maintain the following essential functions can continue to operate:
- Medical outlets;
- Public works and support services;
- Education and training of essential functions personnel;
- Enforcement of the law;
- Access to medical records;
- Hazardous waste and materials;
- Government operations, including performing government contracts;
- Cyber incident management capabilities;
- Constitutional or legal rights, including selling firearms, attending religious or faith-based services, and performing legal services;
- Protection of sensitive information;
- Critical infrastructure;
- Capital markets and investment;
- Consumer and commercial banking;
- Funding and liquidity services;
- Identity management and trust support services;
- Insurance services;
- Medical care and services;
- Payment, clearing, and settlement services;
- Public safety;
- Wholesale funding;
- Storing fuel and maintaining reserves; and
- Community health and mental health.
Supply. Businesses that maintain, produce, or provide the following can continue to operate:
- Fuels, including exploration, extraction, refining, and processing thereof;
- Equipment used for essential functions or critical infrastructure as defined by DHS;
- Agricultural products and services;
- Human and animal food products and services;
- Metals and materials;
- Housing, including rental property, student housing, long-term care or senior living facilities, housing shelters/charities, animal shelters, and hotels;
- Information technology products and services;
- Material and operational support to defense;
- Research and development; and
- Supply water.
For additional information on the KEFF essential functions, Governor Kelly’s office issued its own Guidance and Frequently Asked Questions. Additionally, businesses and individuals who are uncertain whether they perform an “essential function” exempted from the Order may submit an “essential functions” request form here or send an email to KEFF@ks.gov.
2. Order Supersedes Restrictions by Kansas Localities
The Order supersedes all “stay home” local ordinances or similar orders aimed at slowing the spread of COVID-19. While the statewide Order is in effect, no counties or cities may issue or enforce any similar “stay home” order, regardless of whether the local order is more or less restrictive than the statewide Order.
Any local “stay home” orders currently in effect that expire after the statewide Order, however, may resume in force and effect after expiration of the Order. By way of example, Johnson County, Kansas, issued a stay at home order that is in effect from March 24, 2020, until April 23, 2020. If the statewide Order expires on April 19, 2020, the Johnson County order will resume if it has not been rescinded.
3. Enforcement of the Order
Law enforcement officers have discretion to determine appropriate enforcement action and should consider the “totality of the circumstances” when deciding how and when to enforce the Order. To assist local law enforcement and local governments with enforcement of the Order, Kansas Attorney General Derek Schmidt issued a Guidance Memorandum. Under the Guidance Memorandum, violations of the Order are punishable as a misdemeanor offense.
The Order explains that individuals who leave their home to work for an employer that performs an essential function are not required to provide a letter or other paper providing they are allowed to leave their home if stopped by law enforcement.
4. Next Steps
Businesses with operations in Kansas should evaluate the effect of the Order on their operations and take all necessary actions to comply. Littler continues to monitor these rapidly changing developments and offers complementary guidance and resources to assist employers, which can be found here.