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.
This week, Kentucky Governor Andy Beshear made several important announcements regarding Kentucky’s reopening and return-to-work. These announcements culminated in a three-phase plan for non-healthcare business reopening, a four-phase plan for healthcare reopening, and guidelines titled “Ten Rules for to Reopening.” The announcements will guide all employers in the Commonwealth moving forward.
Despite the promise of the reopening-and-return plan, the governor’s guidance poses questions both for essential businesses that continue to operate and for non-essential businesses eager to reopen. The phases for reopening and return to work, as well as open questions regarding implementation of next steps are discussed below.
Phases for Reopening and Return to Work
Governor Beshear has announced two sets of dates to guide businesses in planning to reopen. Each of these is subject to the “Ten Rules for Reopening” addressed further below.
First, for non-healthcare businesses, the governor announced the following phases during his April 29, 2020, evening telecast:
- May 11, 2020: manufacturing, construction, vehicle or vessel dealerships, professional services at 50% staffing level, horse racing with no fans, and pet grooming and boarding businesses may reopen;
- May 20, 2020: retail businesses and houses of worship may reopen; and
- May 25, 2020: barbers, salons, cosmetology businesses and similar services may reopen, and gatherings up to 10 people may occur.
Turning to healthcare operations, Governor Beshear announced the following phases to guide reopening:
- Immediately: health care practitioners may resume “non-urgent/emergent health care services, diagnostic radiology and lab services” in hospital outpatient settings; health care clinics and medical offices; physical therapy settings, chiropractic offices and optometrists; and dental offices (but with enhanced aerosol protections);
- May 6, 2020: outpatient surgeries and other invasive procedures can resume in hospital and care facilities under “strict guidelines”;
- May 13, 2020: Hospitals and care facilities may complete non-emergency surgeries and procedures at 50% of their pre-COVID-19-era patient volume; and
- May 27, 2020: most restrictions on types of procedures and volume will be left to facilities to determine.
Should Kentucky experience a setback in overall COVID-19 recovery profile inconsistent with the governor’s previously announced Benchmarks for Reopening Economy, the above dates may be modified.
“Ten Rules to Reopening”
In addition to announcing dates and phases for reopening and return to work, Governor Beshear articulated “Ten Rules to Reopening” that businesses should have in place as part of any next steps:
- Continue telework where possible;
- Phased return to work;
- Onsite temperature/health checks;
- Universal masks and other necessary PPE;
- Close common areas;
- Enforce social distancing;
- Limit face-to-face meetings;
- Sanitizer/hand wash stations;
- Special accommodations; and
- Testing plan.
These general guidelines have created questions for employers that have begun working through implementation and next steps. At the outset, it is unclear whether these guidelines will be formalized into an executive order requiring compliance, or will remain in place without a formal enforcement mechanism outside of the OSHA and the Kentucky Labor Cabinet’s general healthy workplace statutes and regulations.
The guidelines spur specific questions as well.
Governor Beshear has repeatedly advised this week that, beginning May 11, 2020, everyone in the Commonwealth should be wearing “masks,” whether in an employment, retail, or any other interactional setting. In setting out this guideline, the governor has suggested it will be considered what employers and all citizens should do in looking out for each other, but “[t]his isn’t something you can be fined for, and again no one is going to be arrested for not wearing a mask.” Notwithstanding that assurance, the CDC has recommended that everyone wear cloth face coverings in any setting where social distance may not be maintained, so this guideline squares with that goal.
Employers working to comply with this guideline will need to think through the following questions:
- What constitutes a “mask” as the governor uses the term? He likely means a cloth face covering, as referenced by the CDC, but this is a difference that matters.
- What training on face coverings, if any, should employers provide? This training might include ensuring the face coverings (1) fit snugly against side of face, (2) are secured with ties or ear loops, (3) have multiple layers of fabric, (4) permit breathing without restriction, and (5) can be laundered and machine-dried without damage or change to shape.
- Who provides and/or pays for face coverings?
- Who does the cleaning and maintenance, and who pays for it? For example, the CDC says laundry and machine-drying should occur at least once a day or more often if contamination occurs.
- Does implementation of a face covering requirement alter employee schedules and trigger any additional compensation requirements?
Resolution of these and other questions will be essential for implementation.
“Onsite Temperature/Health Checks”
The governor’s temperature/health check guideline also raises questions, including many with potential exposure lurking. Thus far, the governor has not set out any specifics on this guideline.
Employers working to comply with the guideline should examine the following questions:
- How will temperature/health checks happen consistently with social distancing and other COVID-19 guidelines? For example, if these occur at the beginning of a large shift, will the line be out the door?
- How can the privacy of the temperature/health check be protected so that no one outside of testing personnel gains access to the information, as may be required under potentially applicable laws?
- Beyond obtaining confidential information about employees, how must this information be stored and maintained? For example, the ADA requires a separate confidential medical file for any employee’s medical information, and, in at least one industry, OSHA currently takes the position that such information constitutes medical records that must be kept during the employee’s employment, plus 30 years.
- Who can conduct the temperature/health checks, and what sort of training must they have prior to doing so?
Careful resolution of these and other questions will be essential for implementation of this guideline.
On the above and other questions, employers should watch for further guidance and remain in touch with their counsel, as needed. These can often be legal questions requiring advisory opinions outside the purview of non-legal consultants.