A nonprofit publication of the Kentucky Center for Public Service Journalism

Kentucky health chief tells businesses that masks are key; lawyer tells how to enforce mandate


By Melissa Patrick
Kentucky Health News

The state’s top physician often says that basic public-health measures – like washing our hands, staying six feet apart and wearing a mask – are all we have right now to thwart the spread of the novel coronavirus until we get a vaccine. But masks are the most important, he indicated Friday.

“That single measure is felt to be really a linchpin in us keeping things open and minimizing the spread of the disease,” Health Commissioner Steven Stack said Aug. 7 during a Kentucky Chamber of Commerce “Restart Kentucky” webinar.

Gov. Andy Beshear’s mask mandate, first issued on July 9 and reinstated Aug. 6 for at least 30 days, requires masks to be worn in indoor public spaces, and outdoors when people can’t stay six feet apart. It includes several exemptions, including children who are 5 or younger and any person with a disability or a physical or mental impairment that impairs them from safely wearing a face covering.

Steven Stack

The burden of enforcing the mandate falls largely on businesses, and they still have a lot of questions about what is expected of them, with both their employees and customers, said Wesley Duke, general counsel for the Cabinet for Health and Family Services. He answered some of their most frequently asked questions on the webinar.

“We expect business owners and management to do as much as they can to encourage the wearing of mask,” he said.

He said employers need to broadly document the names and reasons any of their employees fall under an exemption. For example, he said those with a medical exemption simply need to state that as their reason, with no further details. That said, he then encouraged such employees to instead wear a face shield or to move to a job that allows for social distancing whenever possible.

As for customers, Duke said the expectation is for businesses to encourage every customer who enters their establishment to wear a mask, and if at all possible to provide a mask to them if they don’t have one – and if the customer doesn’t have a facial covering or refuses to put one on, ask them to leave.

He stressed that employees should never put themselves into a dangerous situation when asking customers to wear a mask: “We do not expect confrontation, and we would caution against confrontation, but to do everything to that point to encourage the customer to wear that mask and to let them know that they should not enter that premises without one.”

Duke noted that he had heard “through the grapevine” that there are businesses that have told their local health departments that every single employee in their business has a medical reason that exempts them from wearing a mask.

“I don’t know what the odds are of that happening. I don’t mean to question anyone’s honesty,” he said. “However, if that’s their position and they documented it and they are taking that position, then I don’t think there is much to, really, that we can do beyond that. We can’t demand medical records and it’s a very fine line [to] bump up against.”

Stack was not so polite in asking Kentuckians to stop trying to find excuses to avoid doing things that are proven to slow the spread of the virus.

If the public “keeps trying to find ways to avoid the tools that work, we are going to have all the misery we currently have, and we’re going to have added to it more people getting sick and more people who have bad outcomes from health care,” Stack said.

“So this is not a time for us to look for the excuse to avoid doing the right thing; we need all of us, and leadership, and that certainly includes the business community . . . it requires all of us to be consistent on this message: Wear a mask and socially distance, that’s how we get through this until we get a vaccine, hopefully in early 2021.”

At least 34 states currently have some version of a mask mandate.

Stack noted that at least 34 states have some version of a mask mandate, including the bordering states of Indiana, Ohio and West Virginia, and the top recommendation in the latest White House Coronavirus Task Force report is for Kentucky to keep its mandate and work with local communities to ensure higher usage rates.

Duke said it’s important for businesses to post signage that clearly states their expectations about the mask mandate and to educate their employees and others about why it is important.

As for enforcement, the emergency administrative regulation, which is part of Beshear’s executive order, provides for warnings and fines for those who refuse to wear masks, as well as for businesses that don’t enforce its provisions. Duke said the first offense, which is a warning, is an opportunity to educate about why the mandate is so important.

Overall, Duke said the business community has “been overall very, very helpful” with enforcing the mask mandate, especially businesses that are part of large corporate groups, compared to the mom-and-pop type of businesses where some of the issues are coming from.

He said the Kentucky Labor Cabinet’s KYSAFER hotline was getting fewer calls reporting poor compliance with the mask mandate. “I’m hoping that that is because people are wearing them,” he said.

Beshear has acknowledged the need for better enforcement, but has not responded to questions from Kentucky Health News about what he is doing to improve it.

He has said the mask mandate seems to be working, as shown by the state’s recent plateau in case numbers over the past two weeks.

When he extended the mandate, Beshear said he would keep renewing it until the virus is under “significant control” and the share of Kentuckians testing positive for it falls below 4 percent. The latest figure for that measure is 6.01 percent, the highest rate since testing became widely available in May.

Testing is not ideal

Stack said that while testing for the virus has improved, “It’s still not as effortless as we would like.”

Ideally, he said, anyone who would like a test should be able to get one at a cost that doesn’t burden them or their employer. The federal CARES Act requires insurers to pay for testing only of people who have symptoms or are at high risk of exposure. At this point, work-related testing is not paid for by the health-insurance system.

“We have to continue to find better ways to help support industry and employers so they have effortless access to testing,” Stack said. “But like many other occupational health needs, this is one of those things employers have a role to play and so we keep working on that.”

Stack discouraged business owners from investing in antibody testing unless they partner with a properly trained provider who understands their use and limitations. “You will otherwise, you could waste money, get the wrong results, reach the wrong conclusions, and not help yourself and perhaps reach the wrong course of action,” he said.

Health departments offer help

Dr. Lynne Sadler, director of health at the Northern Kentucky Health Department, encouraged businesses to call their local health department if they have employees who have tested positive.

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“One of the things that we hear most often from employers is that they are afraid that we are going to shut them down and that is not at all what our intention is,” Sadler said. “So many of the employers that we’ve worked with have been pleasantly surprised at their interaction with the health department, how helpful it is, how reassuring it is and that we haven’t shut them down, we haven’t made all of their workers go home.”

She explained, “We have some pretty specific criteria about who is considered a close contact that would need to go into quarantine and we really do want to work with employers so that they maintain a safe work place and that we can stop the spread in the community.”

Sadler added that health departments often have resources to help businesses, noting that hers offers a Covid-19 Business Toolkit on its website. She also encouraged businesses to print, laminate and post instructions on what to do if they have a positive case in their business.

“When in doubt, call the health department and let us help you sort through the situations so that we can figure out what’s the best plan of action for you as the employer,” she said.

Sadler also stressed the importance of signage and educating employees and the public about why wearing masks is important. “Let people know what the expectation is, and I think that’s where enforcement starts,” she said.

She later added, “Businesses are such key partners in controlling the spread of covid and so we try to approach this as much as possible as let’s work together because if we all chose to do the right thing consistently, we’ve got this. We can lick this.”

Schools reopening

Stack said that when schools reopen, it will be difficult to control all of the variables needed to keep students safe, like social distancing and mask compliance, but thought it would be possible in the primary grades because they are in highly supervised environments. “I think we can control a lot of the variables well enough to reduce the risk reasonably and tolerably,” he said, but added that the proof will come afterward.

As for colleges and universities, he noted that one of the challenges is that while 18- to 20-year-olds are adults physiologically adults, but not psychologically because the part of their brains that controls judgment is still developing.

“Their frontal lobes aren’t fully developed until they are in their mid-20s, and so that whole appreciation of the longer-term consequences of their actions sort of gets lost on them, right? That’s just part of their developmental stage in life.”

He said he is already hearing stories about college students who have chosen poorly, adding, “This is truly an instance, this disease, where we are all heavily dependent on the decisions other people make.”


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