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 22, 2020, Kentucky Governor Andy Beshear issued Executive Order 2020-246, which orders all nonessential retail businesses to close by 8:00 p.m. today, March 23, 2020.
This is the latest in a series of steps by Kentucky’s governor, beginning with his March 6, 2020, declaration of a state of emergency in the Commonwealth. As Kentucky residents know, Governor Beshear has a daily program at 5:00 p.m. Eastern where he provides updates to citizens about actions taken by the government and private employers throughout the Commonwealth.
To clarify what constitutes a nonessential retail business, the governor additionally issued a chart setting out examples of which businesses may remain open and which must close:
Executive Order 2020-246
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| Motor Vehicle and Parts Dealers | |
| Automotive Dealers *Dealers may provide repair, parts, and service, but showrooms must close. |
No |
| Other Motor Vehicle Dealers | No |
| Automotive Parts, Repair, Accessories, and Tire Stores | Yes |
| Auto, Truck, and Van Rental | Yes |
| Furniture and Home Furnishings Stores | No |
| Electronics and Appliance Stores | No |
| Building Material and Garden Equipment and Supplies Dealers | Yes |
| Banks, Credit Unions, Check Cashing, Wire Transfer, and Other Financial Services | Yes |
| Food and Beverage Stores | |
| Grocery Stores | Yes |
| Supermarkets | Yes |
| Specialty Food Stores | Yes |
| Meat Markets | Yes |
| Fish and Seafood Markets | Yes |
| Fruit and Vegetable Markets | Yes |
| Beer, Wine and Liquor Stores | Yes |
| Health and Personal Care Stores | |
| Pharmacies and Drug Stores | Yes |
| Cosmetics, Beauty Supplies, and Perfume Stores | No |
| Optical Goods Stores | No |
| Other Health and Personal Care Stores | No |
| Gasoline Stations and Convenience Stores | Yes |
| Clothing and Clothing Accessories Stores | |
| Clothing Stores | No |
| Shoe Stores | No |
| Jewelry, Luggage, and Leather Goods Stores | No |
| Sporting Goods, Hobby, Musical Instrument and Book Stores | No |
| General Merchandise Stores | |
| Department Stores | No |
| General Merchandise Stores, including Warehouse Clubs and Supercenters | Yes |
| Miscellaneous Store Retailers | |
| Florists | No |
| Office Supplies, Stationery, and Gift Stores | No |
| Used Merchandise Stores | No |
| Pet and Pet Supplies Stores | Yes |
| All Other Miscellaneous Store Retailers | No |
At this time, non-retail businesses may remain open, but must still comply with the governor’s prior Executive Order No. 2020-0317, which adopts Centers for Disease Control and Prevention (CDC) guidelines for social distancing and requires employers to do the following if practicable:
- Maintaining a distance of 6 feet between persons;
- Ensuring employees practice appropriate hygiene measures, including regular, thorough handwashing;
- Ensuring employees who are sick remain home; and
- Regularly cleaning and disinfecting frequently touched objects and surfaces.
Governor Beshear, in cooperation with the Cabinet for Health and Family Services, also published a sign with these guidelines that employers must post.
Employers should remember that all employment-related federal and Kentucky statutes and regulations continue to apply and require compliance during this time. For example, the federal Occupational Safety and Health Act requires employers to provide a safe workplace free from serious recognized hazards and comply with all standards. Employers should also be mindful of both federal and state wage and hour laws when reducing exempt employees’ salaries in connection with schedule or other reductions in work; this kind of change could imply that the employee’s pay is based on the quantity of work and may adversely impact the exempt classification.
Employers considering furloughs or layoffs must remember the federal Worker Adjustment and Retraining Notification Act and ensure that, if it applies, all applicable notices and other rights have been offered. Furloughs differ from layoffs in that employees typically have an expectation of returning to work for the company at a company-specified time in the future and typically retain their benefits during the term of the furlough. This option can be especially useful for retaining employees that the company cannot currently afford, but who the company does not want to layoff. Finally, there are new paid and other leave laws issued at the federal and state levels. Employers should consult counsel for guidance in complying with these laws when facing unique circumstances during this pandemic.
Littler offers free publicly available resources for employers throughout the COVID-19 pandemic, available here. We will continue to monitor these rapidly changing developments to assist clients through this difficult time.
