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Kentucky’s Legislative Response to COVID-19

By
Sarah Jackson Bishop
Member, Stoll Keenon Ogden PLLC
(502) 875-6245
sarah.jackson@skofirm.com

and

Andrew T. Hagerman
Associate, Stoll Keenon Ogden PLLC
(502) 568-5730
andrew.hangerman@skofirm.com

On Thursday March 26, 2020, both houses of Kentucky’s General Assembly passed SB 150, which addresses Coronavirus relief in Kentucky. Governor Beshear’s signature is expected at any time. This legislation will affect Kentuckians in the following ways:

Licensed Businesses Subject to Closure Orders:

• If persons or entities have been ordered by the Governor to close or alter their businesses as a result of the COVID-19 pandemic, the Governor may direct any administrative body to suspend or waive the collection of fees for licensing, renewal, and applications, as well as any forms, applications, and other administrative requirements for the duration of the current state of emergency.

• If the Governor does not make such a direction, then the relevant administrative body may do so.

• Licensees may continue to practice business without interruption and have a 30-day buffer after the expiration of the state of emergency to pay any owed fee and complete any administrative obligation before action can be taken on their license.

• The Governor shall consider federal grants and monies received as a result of the COVID-19 pandemic to make administrative bodies whole due to suspensions and waivers under this section.

• This section also requires the Governor to declare in writing the date on which the state of emergency has ceased. If not done before the next regular session, the General Assembly may then do so.|

Labor and Unemployment:

The Governor may waive or suspend various provisions of KRS 341 and KAR 787 to protect workers who are affected by Executive Orders issued during the emergency, specifically:

• KRS 341.350/KAR 787: ability/availability to work, work-search activities;

• KRS 341.350(2): 7-day waiting period for unemployment benefits;

• KRS 341.090: alternative base period for determination whether unemployed individual has earned enough wages to qualify for benefits;

• KRS 341.270: reserve ratio of businesses with 100 employees or less shall not be impacted because of layoffs due to restrictions re: Executive Orders;

• Irrespective of KRS 341.050, 341.055, to expand coverage to those otherwise not covered by unemployment insurance;

• Allow employees with hours reduction of more than 10% but less than 60% due to COIVD-19 with no wage decrease, to be eligible for unemployment benefits to compensate them for temporary loss of income.

• KRS 341.250, 341.260: allow Governor to delay date in which contributions by employers shall be due and payable; no penalties/interest against employer.

The statute also requires the Education & Workforce Cabinet to seek eligible waivers, reimbursements and other available funding from the federal government, and authorizes the Cabinet to use other resources to reimburse the unemployment insurance trust fund, while providing the Governor the flexibility to provide administrative directives for unemployment insurance based on the U.S.

Department of Labor’s guidance.

Tax and Revenue:

The Department of Revenue shall adhere to declarations/changes in tax filing and payment requirements provided by the U.S. Treasury Department or the IRS, including extensions of time in which to file returns.

Healthcare Providers:

• Healthcare providers are authorized to provide telehealth services unless specifically prohibited or limited by federal law, and insurers shall cover such services in the same manner as in-person services;

• Healthcare providers are in compliance with Executive Orders and Cabinet for Health and Family Services regulations if, in performing services (1) they comply with federal CMS recommendations on elective surgery and medical produces, and (2) the procedure or service is urgent, or the procedure or service is ordered by a Ky. licensed physician and is provided by physical therapists, occupational therapists, speech therapists, pain management facilities, alcohol/drug/substance abuse programs, in accordance with the statutes.

• Health care providers who in good faith render care or treatment of a COVID-19 patient during the state of emergency shall have a defense to civil liability for ordinary negligence for any personal injury from said care or treatment, or from any act or failure to act from same, so long as they act as an ordinary, reasonable and prudent provider would have done.

• Providers’ limitation of liability for COVID-19 treatment applies to medication prescription and dispensing, public health care services, and the use of medical equipment outside of the product’s normal use.

• The State Board of Medical Licensure may waive or modify statutes and regulations relating to licensure and certification requirements, the scope of practice requirements, telehealth and remote practices, expediting licenses, medical students’ authority, and others.
Manufacture of Personal Protective Equipment (“PPE”):

Kentucky businesses that manufacture or provide PPE or personal hygiene supplies in response to COVID-19 (masks, sanitizer, etc.) that do not do so during their regular course of business shall have a defense to ordinary negligence and product liability so long as they act in good faith and in an ordinary, reasonable, prudent manner.

Miscellaneous:

• Court-ordered counseling or education may be conducted by video conference or teleconference.

• With respect to obtaining signatures, testimony, or notarization, individuals can be deemed in the presence of one another if they are communicating via real time video conference and any document, signature or notarization resulting from such conference may be executed in counterparts which shall be considered a single document.

• Employees within the agricultural industry can operate vehicles that would ordinarily require a specialty license without a commercial driver’s license, subject to certain additional restrictions.
Food and Beverage Industry:

• Food service establishments are exempt from state laws/regulations prohibiting sale of food items like bread, milk, and other staple items to any customer, and no separate permit or fee is required for such sales.

• Alcohol license holders may sell alcoholic beverages in covered or sealed containers, and by the package in closed, sealed original containers on a delivery or to-go/take-out basis, subject to certain additional restrictions.

Open Records/ Open Meetings:

• Public agencies shall respond within 10 days of receipt of open records requests but may delay on-site inspections during the pendency of the state of emergency.

• Public agencies may conduct meetings by live audio/video during the emergency but must provide public notice thereof – KRS 61.823(3)-(5). Agencies must provide live video if available and, if not, then live audio, and provide information to public on how to access the meeting.

Land Use and Zoning:

• Deadlines provided by statute for hearings, decisions, etc. by any local legislative body, board, or commission under KRS Ch. 100 are suspended and tolled during the state of emergency. However, service to the public may continue if social distancing guidelines are enforced.

• Deadlines provided by statute for code enforcement proceedings and hearings in re: KRS 65.8825, 65.8828 are suspended and tolled during the state of emergency. Public services may continue, with observation of social distancing.

• Notwithstanding KRS 67.750, 67.795, tax districts may suspend or extend deadlines for filing of returns for taxable net profits, gross receipts, etc.

Stoll Keenon Ogden understands that these are trying times for our clients and our country. Our firm operations have continued uninterrupted and our attorneys are equipped to serve as we always have – for over 120 years.

If you would like to discuss the resources available to you or your business or non-profit, the effects of the Coronavirus pandemic on your operations, or any other important matters, please do not hesitate to contact your trusted Stoll Keenon Ogden professional.

Please also be sure to check out the Stoll Keenon Ogden Coronavirus Resource webpage for additional articles and information related to the latest information on new laws and directives enacted by federal, state, and local governments in response to the Coronavirus pandemic.