Navigating the Challenges of COVID-19 in the Workplace, 0221 KSBJ, 90 J. Kan. Bar Assn 1, 38 (2021)

AuthorIsaac Keppler.
Position90 J. Kan. Bar Assn 1, 38 (2021)

Navigating the Challenges of COVID-19 in the Workplace

90 J. Kan. Bar Assn 1, 38 (2021)

Kansas Bar Journal

February, 2021

January, 2021.

Isaac Keppler.

Almost overnight COVID-19 changed our world. In February 2020, most Kansans had never heard the term “social distancing.” Wearing a mask or face-covering when leaving the house was reality in other places but seemed unlikely here in Kansas.

By March 2020, our reality changed. In those early days, the death toll from a single COVID-19 outbreak was staggering and the first cases began popping up in Kansas.

President Trump declared a national state of emergency on March 13, 2020. On March 28, 2020, Governor Laura Kelly signed Executive Order No. 20-16, making Kansas the twenty-second state to establish a statewide stay-at-home order.

During those early months of 2020, our law firm fielded Coronavirus-related questions that were new and unique—questions about sick employees, essential workers who were afraid to come to work, screening for COVID-19, medical leave, working from home, caring for children, face coverings in the office, and a myriad of other concerns that many businesses and employees were facing for the first time. Many of those questions did not have obvious answers at the time.

Although much uncertainty remains, since the beginning of March 2020, the Kansas Legislature and United States Congress have passed legislation that helps define rights and obligations and provide support to businesses and individuals during this pandemic. The new legislation and existing guidance from prior pandemics together provide a framework to address COVID-19 issues in the workplace.

This article will focus on three laws that affect the Kansas workplace during the COVID-19 pandemic: 1) Kansas House Bill 2016; 2) The Families First Coronavirus Response Act; and 3) The impact of the “Direct Treat” analysis on rights and obligations under the ADA.


The Kansas Legislature convened a special legislative session to address COVID-19, passing House Bill 2016 on June 4, 2020. This bill is titled “An Act concerning governmental response to the 2020 COVID-19 pandemic in Kansas.” Governor Laura Kelly signed the bill on June 9, 2020 and it became effective immediately upon publication on June 10, 2020.2 Among the wide swath of issues addressed by House Bill 2016, the following provisions directly or indirectly affect the workplace: (a) limitations on the powers of the Governor and county officials under the Kansas Emergency Management Act (KEMA); (b) conditions for the closing of schools; (c) immunity for health care providers and protection from liability for persons conducting business during the COVID-19 state of emergency; and (d) operational framework and limitations for contact tracing.

A review of these provisions will allow Kansas lawyers to provide guidance to their clients on day-to-day operations, and insight regarding what might happen as the COVID-19 pandemic continues into winter and beyond.

Limitations of the Governor’s Power to Declare Emergencies and to Order Closures (Section 5, Section 6, and Section 7) One of the themes of House Bill 2016 was to curtail the power of the Governor to act unilaterally in response to CO-VID-19, instead requiring the governor to obtain approval for significant or long-term emergency measures.

Section Five – Declaring COVID-19 Related Emergencies

Section Five of House Bill 2016 ratifies the Governor’s previous state of emergency declarations, but prevents the Governor from proclaiming any new COVID-19-related state of disaster emergency during 2020 unless the Governor’s action is approved by affirmative vote of six of eight members of the State Finance Council.

Section Six – Limitations on Business Closures

Similarly, under Section Six, the Governor is prohibited from ordering the closure of a business or temporary stoppage of commercial activity unless the Governor consults with the State Finance Council at least 24 hours prior to issuing the order to provide the Council information regarding the conditions making the order necessary.

Additionally, the Governor is prohibited from issuing any closure order for more than fifteen days without approval from the State Finance Council. If the Governor seeks to extend any closure order beyond fifteen days, she must apply to the State Finance Council to extend the order and obtain a vote of approval by six of the eight members for an extended period of time not more than thirty days. Section Six expires on January 26, 2021.

Section Seven – Limitations on School Closures

Section Seven prohibits the Governor from issuing any executive order under the Kansas Emergency Management Act (“KEMA”) to close public or private schools unless 1) the Governor submits the proposed order to the State Board of Education, and 2) the State Board of Education approves the order through the adoption of a resolution by a majority of the members of the Board.

Together, these sections significantly limit the Governor’s authority to act in response to the COVID-19 pandemic and reflect the preference of the Kansas legislature to keep businesses and schools open despite the risks posed by the COVID -19 pandemic.

The Business Liability Protection Act—Sections 8-15

House Bill 2016 also creates a new law titled the Business Liability Protection Act (“BLPA”). The BLPA delivers broad immunity for healthcare providers and much more limited protection for employers and business owners for acts and omissions occurring during the COVID-19 state of emergency.

Specifically, the BLPA provides that a healthcare provider[3] is immune from civil liability for damages, administrative fines or penalties for acts, omissions, healthcare decisions, or the rendering of or the failure to render healthcare services, including services that are altered, delayed, or withheld as a direct response to any COVID-19 state of disaster emergency under KEMA.

However, a healthcare provider will not be allowed immunity from civil liability if it is established that the healthcare provider’s act, omission or healthcare decision constituted gross negligence or willful, wanton or reckless conduct.

Importantly, immunity will not apply to healthcare services 1) that are not related to COVID-19 and 2) that have not been altered, delayed or withheld because of the COVID-19 public health emergency. This provision applies retroactively to claims that accrue on or after March 12, 2020 and which occur during the Governor’s state of emergency disaster declaration under KEMA.

Business Liability Protection

A person conducting business in Kansas, including the person’s agents and employees, shall be immune from liability in a civil action for a COVID-19 claim4 if such person was acting pursuant to and in substantial compliance with public health directives applicable to the activity giving rise to the claim. This provision retroactively applies to any claims where the cause of action accrued on or after March 12, 2020.

This section is not a “silver bullet” that will prevent all COVID-19 related claims. However, it establishes a clear affirmative defense and incentivizes businesses to establish a workplace protocol that complies with public health directives from the CDC and state and local agencies such as physical distancing, masks that cover the mouth and nose, enhanced hygiene and cleaning protocols, and screening procedures.

As drafted, the section expires on January 26, 2021, and it is unclear whether it will be extended further into 2021. This is an important deadline to monitor and discuss with clients.

Adult Care Facilities

House Bill 2016 also provides an affirmative defense for adult care facilities for COVID-19 related claims if the facility establishes that it was acting pursuant to and in substantial compliance with public health directives, and: • The claim was caused by the facility’s compliance with a statute or rule and regulation to re accept a...

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