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Kentucky Executive Order 2020-257 Requires Non-Life Sustaining Business to Cease Operations

On March 25, 2020, Kentucky Governor Andy Beshear signed Executive Order 2020-257, which requires many Kentuckians to stay safe at home.[1] The Executive Order directs all businesses that are not life-sustaining to cease operations effective Thursday, March 26, 2020 at 8:00 p.m. All prior Orders, Directives, and Executive Orders remain in effect, except to the extent they conflict with Executive Order 2020-257. 

This Executive Order impacts the operations of every Kentucky business—from large manufacturers to small businesses—by imposing additional requirements for the safety of their employees and customers. The Executive Order also requires some businesses to limit their in-person staff to the minimum necessary to maintain basic operations. 

As expected, the Executive Order exempts any work covered by the recently published federal CISA list (see below at “a”) and several other categories of businesses. It also maintains the earlier restrictions on retail businesses, restaurants, and beverage sellers. Additionally, Paragraph 1, Section P of the Executive Order allows companies that are in the supply chain for businesses that are life-sustaining to continue operations. The following summarizes the businesses addressed in the Executive Order, including those businesses deemed life-sustaining that are allowed to remain open in light of the Executive Order:

WHAT ARE LIFE-SUSTAINING BUSINESSES?

Life-Sustaining Businesses can be defined several different ways. 

a.The Federal Critical Infrastructure Sections website[2] provides information about the 16 critical infrastructure sectors that are considered vital and may remain open pursuant to Presidential Policy Directive 21 (PPD-21), which identifies 16 critical infrastructure sectors;

b.         In-person retail stores that provide life-sustaining goods, consistent with Executive Order 2020-246,[3] are deemed life-sustaining businesses;

c.         Food, beverage, and agriculture;

d.         Organizations that provide charitable services, including food banks, emergency services, and religious and secular nonprofit organizations; 

e.         Media including television, radio, and other media services;

f.          Gas stations and businesses relating to transportation, including bicycle repair, farm, and automotive supply and repair;

g.         Financial services, including but not limited to banks, credit unions, consumer, industrial, and mortgage loan companies, and even pawn brokers to the extent they are selling firearms and ammunition (the Executive Order allows those selling firearms and ammunition to remain open);

h.         Housing, building, and construction;

i.          Mail, post, shipping, logistics, delivery, and pick-up services;

j.          Laundry mats, dry cleaners, and industrial laundry services;

k.         Restaurants for consumption off premises—such as carry-out, drive-through food, and beverage sales;

l.          Supplies for life-sustaining businesses;

m.        Transportation, including airlines, taxis, rentals, as well as ride sharing businesses such as Uber and Lyft;

n.         Home-based care and services for adults, seniors, and children, as well as those with substance abuse disorders and mental illness;

o.         Professional services such as legal, accounting, insurance, and real estate (but these businesses are required to implement work at home to the “fullest extent possible”);

p.         Manufacturing, distribution, and supply chains for critical products and industries:

q.         Critical labor union functions;

r.          Hotels and motels; and

s.          Funeral services.[4]

OTHER IMPORTANT CONSIDERATIONS IN EXECUTIVE ORDER 2020-257

It should be noted  the Executive Order does not affect: 

  • telework or virtual operations or  
  • any business engaged in the sale of firearms and ammunition.

Additionally, while the Executive Order does not eliminate the obligation  to pay rent or mortgage, commercial and residential evictions are  suspended for the duration of the state of emergency.

HOW DO I PROTECT MYSELF, EMPLOYEES, AND THE PUBLIC IF MY BUSINESS IS OPEN?

All businesses—whether fully open or open only for “minimum basic operations”[5]—must implement certain practices on social distancing and hygiene. Those include:

  1. Ensuring physical separation of employees and customers by at least six feet when possible;
  2. Ensuring employees practice appropriate hygiene measures, including regular, thorough handwashing or access to hand sanitizer;
  3. Regularly cleaning and disinfecting frequently touched objects and surfaces;
  4. Permitting employees to work from home when feasible; and
  5. Identifying any sick employees and asking them to leave the premises. Employers are strongly encouraged to offer these employees paid leave.

WHAT IF I DON’T KNOW IF MY BUSINESS IS COVERED OR I NEED ADDITIONAL GUIDANCE

It is important to note businesses do not need to obtain confirmation that they are “Life-Sustaining Businesses.” The KY SAFER[6] website states, “If your business or organization is in the list of exempt sectors, it may still operate. You do not need to obtain any specific authorization from the state to do so. If your business is clearly life-sustaining and you request authorization to operate anyway, you should not expect a response.”


[1] See Ky. Exec. Order No. 2020-257 (March 25, 2020), http://apps.sos.ky.gov/Executive/Journal/execjournalimages/2020-MISC-202...

[2] Cybersecurity & Infrastructure Security Agency, available at: https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19  

[3] See Ky. Exec. Order No. 2020-245 (March 22, 2020), https://governor.ky.gov/attachments/20200322_Executive-Order_2020-246_Re...

[4] These categories are further defined in the full text of the Executive Order.  See Ky. Exec. Order No. 2020-257, paragraph 4 (March 25, 2020), http://apps.sos.ky.gov/Executive/Journal/execjournalimages/2020-MISC-202...

[5] Pursuant to Executive Order 2020-257, ““Minimum Basic Operations” are the minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, facilitate telecommuting, and other related functions.”  See Ky. Exec. Order No. 2020-257, paragraph 4, (March 25, 2020).

[6] See Kentucky Labor Cabinet, SAFER Compliance, https://govstatus.egov.com/kysafer-compliance.  Additionally, the website also features a FAQ / general guidance, and an online form to submit questions..

© 2020 Dinsmore & Shohl LLP. All rights reserved.

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About this Author

Kyle R. Bunnell AssociateTort law,commercial litigation.
Associate

Kyle is a litigator and focuses his practice on Tort law and commercial litigation. His experience includes drafting motions, briefs, and documents for clients in complex cases appearing in state and federal court.

He received his J.D. from the University of Kentucky College of Law and has a B.S. from Western Kentucky University. During law school, Kyle was the president of the Student Bar Association and previously served on the Kentucky Young Lawyer’s Division.

859-425-1045
Joseph N. Tucker Commercial Litigation Attorney Dinsmore Louisville, KY
Partner

Joe focuses his practice on commercial litigation matters. He handles a  variety of matters at the trial court and appellate levels involving contract and lease disputes, coal supply agreements, force majeure provisions, non-competition employment cases, creditors' rights, FDCPA/FCRA compliance and FDCPA/ FCRA/TCPA defense litigation, residential and commercial construction defect disputes and product liability cases.

He has extensive experience in insurance matters, issues coverage opinions for several national insurance companies and has defended complex insurance coverage and bad faith disputes under auto, property, CGL, D&O, E&O, and occupational accident insurance policies.

Joe has appeared before the Sixth and Eleventh circuit courts of appeal and in federal and state courts in North Carolina, Kentucky, Florida, Tennessee, Ohio and South Carolina and has arbitrated complex commercial cases in numerous states in the southeast. He has handled multi-million dollar serial litigation and class action lawsuits involving hundreds of parties and witnesses and also provides advice and litigation services to a variety of businesses on general commercial matters, including bankruptcy, the UCC, lender liability claims and close corporation shareholder disputes.

Additionally, Joe serves as the firm's Kentucky ethics partner.

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