LAST UPDATED May 7, 2020

Resuming business operations as the intensity of the COVID-19 pandemic decreases and governments in Kentucky and Indiana ease restrictions will involve more than unlocking your front door and turning the lights on. You must assess your operational needs and abilities in the context of your supply chain’s capabilities, customers’ expectations, existing and emerging laws and regulations, and a wide variety of employment issues. Even if Kentucky and Indiana governments have not yet lifted restrictions on your business, now is the time to get your re-opening plan in order. Fisher Phillips, the same workplace law firm that helped businesses navigate the COVID-19 crisis, is here to help employers make plans for getting back to business.

The following information was prepared by Kentucky- and Indiana-licensed attorneys in our Louisville, Kentucky office. It is a focused supplement to the much broader Post-Pandemic Back-To-Business FAQs For Employers prepared by FP’s Post-Pandemic Strategy group (a multi-disciplinary group of Fisher Phillips workplace attorneys from across the nation). Both documents will be updated throughout the recovery period.

GENERAL RETURN-TO-WORK PRINCIPLES

Indiana [UPDATED ON MAY 7, 2020]

Indiana Governor Eric Holcomb issued Executive Order 20-08 (“Stay-at-Home Order”) on March 23, 2020, requiring all residents — except those working for an essential business — to stay at home until April 6. The Stay-at-Home Order was subsequently extended twice by Governor Holcomb and was replaced by Executive Order 20-26 on May 1, 2020. In conjunction with the issuance of Executive Order 20-26, Governor Holcomb announced his plan to gradually reopen the state as part of a five-step plan, dubbed “Back-On-Track.” Indiana will follow four guiding principles to determine how various sectors of the economy should reopen moving forward: (1) the number of hospitalized COVID-19 patients statewide has decreased for 14 days; (2) Indiana retains its surge capacity for critical care beds and ventilators; (3) Indiana can test all residents who are COVID-19 symptomatic; and (4) the ability to conduct contact tracing.

Using the above criteria, Indiana will conduct a county-by-county assessment to determine which stage should apply to a particular county at the end of each time period. If the impact of COVID-19 is minimal or has significantly decreased, the county may be permitted to advance to the next stage. However, if the impact of COVID-19 has not decreased, the county may be required to stay at the current stage or return to a prior stage.

Fisher Phillips recently published a legal alert discussing the various stages included in “Back-On-Track,” and the relevant time periods for each. (Note: any county currently operating at Stage 1, e.g., Cass, Marion, and Lake, must continue adhering to the restrictions and requirements included in Executive Order 20-22).

Executive Order 20-26 also requires Indiana businesses continuing their operations, or those allowed to reopen, to develop a plan to implement measures and institute safeguards to ensure a safe environment for employees, customers, clients and members. Such plans must be created by May 11, 2020 and distributed to employees as well as posted publicly. At a minimum, the plans must cover the following: (1) instituting an employee health screening process; (2) employing enhanced cleaning and disinfecting protocols for the workplace, including regularly cleaning high-touch surfaces; (3) enhancing the ability of employees, customers, and clients to wash hands or take other personal hygiene measures, such as using hand sanitizer; and (4) complying with social distancing requirements established by the CDC, including maintaining six feet of separation among employees and members of the general public and/or employing other separation measures such as wearing face coverings or using barriers to create adequate separation.

Indiana is also developing the “Small Business PPE Marketplace” to provide reliable access to personal protective equipment (PPE) for small businesses that need help to comply with safe workplace precautions. Businesses and non-profit entities with fewer than 150 employees and registered to do business in Indiana will be eligible. More details will be outlined in the near future.

Kentucky

Per an Executive Order on March 23, 2020, Kentucky Governor Andy Beshear closed all in-person retail businesses that are not life-sustaining. Retail businesses like grocery stores, pharmacies, and gas stations have remained open. In addition, Governor Beshear encouraged Kentuckians to remain “Healthy at Home,” limiting non-essential trips to such retail businesses.

On April 17, 2020, Governor Beshear announced the Commonwealth would reassess its ability to reopen the economy after it achieves the following benchmarks:

1. 14 days of decreased coronavirus cases;
2. Increased testing capacity and contact tracing;
3. Availability of PPE;
4. Ability to protect at-risk populations;
5. Ability to social distance in large gatherings, per the CDC’s guidelines;
6. Preparedness for a possible future spike; and
7. Status of vaccine and treatment.

In addition to the above benchmarks, the governor announced guidance for individuals, employers, and specific types of employers. As Kentucky begins reopening its economy, individuals who feel sick will continue to be encouraged to stay home and should continue following current hygiene and social distancing guidelines. Employers generally should continue encouraging telework to the extent possible to reduce large gatherings of employees.

To that same end, the governor’s guidance indicates employers should close common areas and allow employees to return to work in phases. While not a requirement, the guidance states employers should “strongly consider” special accommodations for employees who are members of vulnerable populations (e.g., those over 60).

The governor addressed some specific businesses. Schools will remain closed to in-person instruction through the end of the school year. In addition, the guidance states that visits to senior living facilities and hospitals should continue to be restricted as the Commonwealth reopens, to protect more vulnerable populations. Gyms and outpatient facilities may reopen if they can adhere to strict guidelines on sanitation and distancing. Bars will remain closed during the initial phases of reopening to discourage large groups from congregating and violating social distance guidelines.

On April 21, 2020, Governor Beshear announced the “Healthy at Work” initiative to complement the ongoing “Healthy at Home” plan. Healthy at Work aims to help Kentucky businesses reopen safely after the Commonwealth meets the seven benchmarks outlined above, which constitute “Phase 1” of the “Healthy at Work” initiative.

Under “Phase 2,” the Commonwealth will evaluate individual businesses’ ability to reopen gradually and safely. The State’s website encourages industry groups and individual businesses to submit proposals regarding ideas for and challenges to reopening. The proposals should address ability to provide PPE to employees, adequate access to hand sanitizer and disinfectant, and minimal direct contact between employees and the public. The Healthy at Work website indicates industry groups and trade associations may submit input and may submit Business/Trade Association Reopen Proposals and individual businesses also may submit reopening proposals. After receiving input from businesses, the governor, local leaders, and the Department of Public Health will evaluate at what point certain businesses may begin opening, and they plan to issue industry-specific guidance that businesses must follow upon reopening.

The governor’s public statements have not been entirely consistent with the Commonwealth’s published materials. For example, the governor has stated each business must submit a reopening proposal and cannot reopen until the state approves the proposal. For all businesses, the governor has published 10 rules to follow for businesses reopening under the Healthy at Work plan:

1. Continue to telework where possible;
2. Phased return to work;
3. Onsite temperature/health checks;
4. Universal masks and other necessary PPE;
5. Close common areas;
6. Enforce social distancing;
7. Limit face-to-face meetings;
8. Sanitizer and/or hand-wash stations;
9. Special accommodations; and
10. Testing plan.

On April 29, 2020, the governor announced tentative dates for reopening certain business sectors. By May 11, it is likely that the following businesses may reopen: manufacturing, construction, vehicle and vessel dealerships, professional services (at 50% pre-outbreak capacity), horse racing (without spectators), and pet grooming and boarding. By May 20, retail stores and houses of worship may open, and by May 25, barbers, salons, and cosmetology businesses may open. Still in question are gyms, restaurants, movie theaters, campgrounds, youth sports, and day care centers, as worries remain about large crowds and transmission of the virus.

Not only is the government watching Kentuckians, it wants Kentuckians to report one another to the state. The Kentucky Labor Cabinet’s KYSAFER web page actively encourages employees and citizens to report businesses they believe are not following the governor’s orders. Governor Beshear has stated businesses that fail “strictly comply” with reopening “guidelines” may be cited and or shut down. You should expect employees and others to report perceived infractions to the state and be prepared to demonstrate you are fully compliant.

WORKPLACE SAFETY

Relaxed Shelter-In-Place/Stay Home Order Issues

As the President and governors consider easing shelter-in-place orders, it is important for Kentucky and Indiana employers to stay up-to-date on the current status of reopening plans in their states.

Kentucky

In Kentucky, as noted above, Governor Beshear’s Healthy at Work initiative is a two phase approach to reopening Kentucky’s economy. Phase 1 is a state-readiness evaluation, while Phase 2 is an individual business-readiness evaluation. In preparation for Phase 2, Kentucky employers bringing employees back to work as restrictions are lifted should, at minimum, be prepared to: (1) provide cloth face covers to all employees and PPE to other employees as necessary; (2) provide adequate access to hand sanitizer and disinfectant; (3) strictly enforce social distancing (at least 6 feet) and minimal direct contact between employees and the public; and (4) adopt protocols for handling known and suspected COVID-19 diagnoses and close contacts.

On April 23, 2020, Governor Beshear announced the first economic sector – healthcare – would begin gradually reopening on April 27, 2020. This occurred on schedule, and non-urgent/emergent healthcare services, diagnostic radiology, and lab services have begun reopening subject to State guidelines. The guidelines include, among other things, daily screening of each employee for temperature and COVID-19 symptoms, all employees continuously wearing surgical/procedural masks at work, all patients and visitors wearing either a surgical/procedural mask or a cloth face cover when in contact with patients and/or staff, and the employer being “able to procure all necessary PPE for routine services via normal supply chains.” The state has not said when other businesses may begin reopening, but it likely will impose many of these requirements on all other businesses as a condition or reopening and remaining open.

Indiana [UPDATED ON MAY 7, 2020]

Workplace safety requirements and recommendations in Indiana vary by industry and the particular stage of Indiana’s “Back-On-Track” plan. Through Executive Order 20-26, Governor Holcomb either requires or strongly encourages the following businesses to provide face coverings to their employees and, in some circumstances, their customers: retail stores, restaurants, professional services and other office-based businesses, personal services (salons, spas, barber shops, etc.), and healthcare and public health businesses. Indiana also published a list of industry-specific safety guidelines, which can be found here. (Note: to the extent the industry-specific guidelines conflict with Executive Order 20-26, the requirements of Executive Order 20-26 should be followed).

Indiana and Kentucky employers should also expect to, and be prepared to, address employee concerns related to COVID-19 upon reopening. To reassure employees that all hazards are being addressed, you should consider putting in place clear explanations and assurances about safety precautions being taken (such as signage, periodic reminders of good practices, and employee updates). To further minimize employee concerns, you should follow the Centers for Disease Controls and Prevention (CDC) guidance, as well as the federal OSHA guidance, to assist in making workplace safety decisions regarding reopening.

Taking Employees’ Temperatures And Other Medical Inquiries

Indiana and Kentucky employers may continue operating under the EEOC’s guidance, which permits measuring employees’ body temperatures and requiring accurate and reliable COVID-19 testing, until further notice. If you decide to implement such measures, you should be aware there are possible implications under Indiana’s and Kentucky’s Occupational Safety and Health Acts (the “OSH Act”) that employers should keep in mind. You also should frequently check the EEOC’s website for changes to the guidance.

When implementing a temperature screening process, Indiana’s Occupational and Safety Health Administration (IOSHA) and Kentucky’s Occupational and Safety Health Administration (KOSH) require an employer to assess potential risk factors and hazards associated with the process and determine appropriate personal protective equipment (if any) to issue to employees conducting temperature screenings. OSHA’s recently promulgated Guidance on Preparing Workplaces for COVID-19, which IOSHA and KOSH follow and enforce, can help you classify your workplace exposure risk level, from “Very high” to “Low.” The higher the exposure risks, the greater the levels of controls and protections that must be implemented.

At this point is unclear whether OSHA considers taking body temperatures “biological monitoring” within the purview of 29 CFR 1910.1020 entitled, “Access to employee exposure and medical records.” Rather than incur the attendant record keeping obligations, it may be best to take employees’ temperatures and merely view the results without tracking or recording the data.

Masks And Cloth Face Covers

Indiana and Kentucky employers intending to require employees to wear face masks or cloth face coverings should be aware that OSHA’s PPE standard may apply. The PPE standard applies to “all protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers.” This means, before you can require an employee to wear a face mask as PPE, you must:

• Perform a hazard assessment;
• Consider other alternative options to protect employees;
• Identify and provide appropriate PPE for employees;
• Train employees in the use and care of PPE;
• Train employees how to clean and maintain PPE, including replacing worn or damaged PPE; and
• Prepare a plan that is periodically reviewed, among other steps, including employee specific requirements.

Whether cloth face covers (as opposed to “masks”) are “PPE” and subject to the standard currently is not clear. There is an argument to be made that cloth face covers are not PPE, because they protect others and not the wearer. However, making that argument would involve risk and could be costly. To be safe, employers who require employees to wear cloth face covers should assume state and federal agencies will deem them PPE. Similarly, if you require employees to wear face masks or cloth face covers you should pay for them (as PPE). Kentucky apparently intends to require employers to require virtually all employees to wear cloth face covers, so prepare accordingly.

Miscellaneous Safety Considerations

The OSH Act requires employers to ensure their workplaces are “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” While OSHA has not implemented new standards specifically for COVID-19, it has said in recent guidance that this general duty obligation applies to COVID-19-related hazards.

Kentucky and Indiana employers should be aware that KOSH and IOSHA, respectively, are enforcing the executive orders detailed above regarding whether a business is permitted to be open and, whether such businesses are adhering to social distancing and PPE protocols. In fact, KOSH has recently taken a heavy-handed approach when inspecting employers’ facilities, especially after receiving COVID-19-related complaints.

For instance, KOSH has forced several businesses to temporarily shut down after reporting positive COVID-19 cases among its employees and/or allegedly failing to follow social distancing or other CDC guidelines. Our Louisville office attorneys have helped employers with some of those incidents. IOSHA has not taken such an aggressive approach during COVID-19-related inspections. IOSHA is following federal OSHA and using the rapid response program for complaints related to COVID-19, including social distancing.

To promote employees’ health, safety, and well-being, and satisfy KOSH inspectors, Kentucky employers should implement as many CDC precautions as practicable to minimize the spread of COVID-19. These may include reconfiguring physical workspaces to increase distances among employees, placing barriers between workspaces, closing or modifying common areas, modifying high-touch surfaces (e.g., turning latch doors into push doors and installing no-touch receptacles), and budgeting for and providing PPE (including disposable wipes, hand sanitizer, and masks or cloth face covers where social distancing or other measures are not practical). For additional information see Kentucky OSHA COVID-19 guidance documents at https://kysafe.ky.gov/Pages/index.aspx.

WORKPLACE PRIVACY

Indiana

Indiana employers planning to collect information regarding employees’ temperatures, results of antibody testing, and/or COVID-19 diagnosis must be mindful of their obligations under I.C § 22-9-5-20 to ensure such information is collected without regard to an employee’s disability or other protected category. Indiana employers are subject to the following obligations as it relates to medical examinations: (1) all employees must be subject to the examination regardless of disability; (2) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files, and must be treated as confidential medical information; and (3) the results of the examination must be used only for job-related purposes.

Additionally, Indiana employers may not require a medical examination and may not inquire as to whether the employee is an individual with a disability or as to the nature or severity of the disability, unless the examination or inquiry is job related and consistent with business necessity.

Kentucky and Indiana

In both Kentucky and Indiana, businesses and individual supervisors may be held liable for defamation under various circumstances. One is publicly portraying a person in a false light that would be highly offensive to a reasonable person. This may occur, for example, where a manager states publicly, “Our employee, John Doe, has a fever today and has COVID-19,” if the manager either knows Doe does not have COVID-19 or makes no effort to determine whether the statement is true.

In this case, because a fever alone is not proof a person has COVID-19, the statement appears reckless. Additionally, “imputation of a loathsome disease” (which COVID-19 arguably is) is presumptively slanderous in Kentucky and Indiana. Moreover, even if Doe had COVID-19, the business and the supervisor could be held liable for publicly disclosing such highly offensive private facts that are not of legitimate concern to the public.

Finally, Kentucky and Indiana businesses, as well as their employees, may be held liable for intentionally intruding, by use of a method objectionable to a reasonable person, into a matter the employee has a right to keep private. An example might be taking John Doe’s temperature in front of a large group of people and then shouting out his temperature for all to hear. These sources of potential liability are in addition to potential liability under the ADA, as well as Kentucky’s and Indiana’s civil rights laws.

HUMAN RESOURCES CONSIDERATIONS

Remote Work/Telework

Kentucky

As noted above, as part of Kentucky’s Healthy at Work initiative, employers are encouraged to allow employees to continue to working from home when possible as the Commonwealth begins to reopen. To the extent telework has not been unduly burdensome for an employer during this crisis, it will be more difficult for that employer to demonstrate telework is not a reasonable accommodation under the ADA if an employee requests it in the future.

Some employers have been pleasantly surprised to discover telework is not as bad as they had (for decades) thought it would be. In fact, some have found it better than having employees taking up expensive commercial real estate. Kentucky employers whose employees have been efficiently and effectively working from home during the COVID-19 pandemic should consider making such arrangements permanent.

Indiana

Although not required, Indiana employers also should consider doing this as well.

Paid Sick Leave

Indiana

If an employee accrued paid sick leave prior to being furloughed, their balance must be restored upon return. This, of course, assumes the employee did not use any accrued sick leave while on furlough, or the company did not “cash out” an employee for accrued, but unused, sick leave at the time they were furloughed.

Kentucky

Employers in Kentucky are not required to provide paid sick leave to their employees. To date, Kentucky has not adopted any paid sick leave provisions during the COVID-19 pandemic.

WAGE AND HOUR ISSUES

Reduction in Pay

Indiana

To the extent a reduction in employee compensation is anticipated, you must notify employees of such reduction no later than the pay period preceding the change.

UNEMPLOYMENT COMPENSATION

Indiana

If an employee is recalled but refuses to return to work due to a COVID-19-related concern with no directive from a medical professional, they will most likely be ineligible for continued unemployment benefits. Indiana’s Department of Workforce Development has, however, instructed such individuals to continue applying for benefits. The circumstances of each claim will be evaluated to determine if an exception should be made.

Indiana employers must report all newly hired employees, and employees returning to work after a break of 60 days or more, within 20 days of hire or return (this should be the first actual date of work). Employees who return to work at reduced hours may still be eligible for unemployment benefits.

Kentucky

If an employee refuses to return to work once recalled, the employee may continue receiving unemployment benefits only if they have a valid, qualifying reason for refusing work. If the employee is given the option to telecommute, the employee must accept such opportunity or be deemed ineligible to continue receiving unemployment benefits.

Kentucky employers must report all newly hired and re-hired employees within 20 days. Employers may report electronically or physically. Employers must provide their Federal and Kentucky Employer Identification Numbers, the name of the business, and the employer’s address, along with the employee’s name, mailing address, Social Security Number, and the employee’s date of hire (or rehire). Employees who return to work at reduced hours may still be eligible for unemployment benefits.

WRONGFUL DEATH/PERSONAL INJURY/WORKERS’ COMPENSATION

Indiana

Indiana workers’ compensation benefits are paid by employers, not the state. As a result, the state cannot force employers to automatically cover employees who contract COVID-19. Whether an employee contracts the coronavirus in the course and scope of employment is a determination that must initially be made by the employer. This decision usually is made when the employee notifies the employer of the injury, or in this case, contracting the coronavirus. That decision may be challenged, however, through the administrative process.

It is well accepted that first responders and health care providers, as well as others directly involved in the provision of services to those exhibiting symptoms of COVID-19, are more susceptible to contacting the disease as a direct result of their work duties. Others whose jobs necessarily entail close interaction with many people in a public setting also are more vulnerable to exposure and possible infection than those working remotely or in a limited office setting or in many other settings.

The state urges employers to consider prospectively determining whether to treat vulnerable segments of their workforces as presumptively covered by Indiana’s Workers’ Compensation Act if they:

• Are quarantined at the employer’s direction due to a confirmed or suspected COVID-19 exposure;
• Receive a COVID-19 diagnosis from a physician without a test;
• Receive a presumptive positive COVID-19 test; or
• Receive a laboratory-confirmed COVID-19 diagnosis.

Employers should relay any such decisions to their workforce and workers’ compensation insurance carrier/third party administrator as soon as possible to allay fears and expedite the claims process.

Kentucky

On April 9, 2020, Governor Beshear issued an Executive Order regarding occupational exposure to COVID-19. The Order changes workers’ compensation law in Kentucky in a couple of ways. First, if an employee is removed from work by a physician due to occupational exposure, then they will be eligible for temporary total disability (TTD) benefits, even if the employer later denies liability for the claim. The normal seven-day waiting period has also been suspended.

Occupational exposure means there is a “causal connection between the conditions under which the work is performed and COVID-19.” Under the Order, certain workers will be presumed to have contracted COVID-19 on the job, including, but not limited to: employees of a healthcare facility, corrections officers, and child care workers providing care during the State of Emergency. Employees removed from work by a physician due to occupational exposure “shall be entitled to temporary total disability payments . . . during the period of removal even if the employer ultimately denies liability for the claim.” The Order will remain in effect until it is rescinded or the State of Emergency is lifted.

CONFLICTING DIRECTION FROM VARYING GOVERNMENT OFFICIALS

Kentucky

Governor Beshear’s Order closing non-life-sustaining retail businesses is in effect for the duration of the Commonwealth’s State of Emergency. The Healthy at Home Order, too, remains in effect during the State of Emergency. Conflicts may arise in the event the White House urges state governments to lift restrictions before Governor Beshear lifts the State of Emergency. Moreover, as noted above, the state has been sending mixed signals about whether businesses must submit reopening orders and whether state guidelines actually be enforced as if they were mandatory laws or regulations.

PRACTICAL CONSIDERATIONS FOR REOPENING

Figure out now, not next tomorrow or next week, how you will quickly and safely reopen your business — and remain open.

1. Create a written plan;
2. Some basic reopening requirements, likely to continue for at least a few months, are reasonably predictable: most employees will be required to wear cloth face covers; employees must be screened and their temperatures taken daily; physical barriers should be installed to prevent spread of COVID-19; policies and postings for social distancing and proper hygiene will be required; protocols for dealing with COVID-19 positive cases, exposures, and potential exposures;
3. Know how to recognize and handle protected concerted activity;
4. Be ready for OSHA inspections;
5. Consider adopting a permanent telework policy (if you don’t have one already) to allow a wider range of employees to work remotely and help improve social distancing in the workplace;
6. Evaluate your sick leave policies to make sure they are up-to-date, sufficiently flexible, and perhaps less punitive, to encourage rather than discourage your sick employees to stay at home; and
7. Work with employees who may have childcare obligations (if daycares, schools, etc. have not yet reopened) to address their current scheduling limitations. Consider shift changes and/or a reduced work schedule until an employee’s normal operations can resume.