Sharon Gay

Georgia Legislative Update – August 7, 2020

The 40 day period after the end of the legislative session for the Governor to sign or veto bills ended on August 5th. After vetoing 14 bills in 2019, Governor Kemp only rejected four bills from the 2020 legislative session. Each veto received an accompanying statement describing the primary reason for disagreeing with the legislation which passed both houses of the Georgia Legislature.

The vetoes are as follows:

  1. House Bill 935 which would have created the Recorder’s Court of Gwinnett County. The bill was vetoed at the request of the bill’s sponsor.
  • House Bill 991 which would have created the Healthcare Transparency and Accountability Oversight Committee. The Governor vetoed the legislation out of an apparent concern for the separation of powers. In part, he argued that the Committee would supplant the authority of the Board of Public Health and would blur the lines between the General Assembly and the Executive branch given such boards are considered to be part of the executive branch of government.
  • Senate Bill 306 which would have enacted the Audiology and Speech-Language Pathology Interstate Compact was vetoed by the Governor in part because the Georgia Occupational Regulation Review Council did not review and approve the legislation as is statutorily mandated and additionally, there was no fiscal analysis to determine associated costs.
  • Senate Bill 504, which would create a referendum in Glynn County on the question of whether or not to abolish the Glynn County Police Department was vetoed because the Governor signed a similar, binding bill calling a referendum on the same topic.

The Governor issued one signing statement on House Bill 105 concerning disagreements as to whether the bill would create a tax exemption for income received as payments from a federal disaster relief or assistance grant program. The Governor noted that it was not clear whether or not the bill passed both houses with the same language. As such, he is calling a special session to rectify the situation.

The Governor signed several significant pieces of legislation including Senate Bill 359 which limits most negligence suits related to COVID-19 as long as companies follow social distancing, disinfection and other safety protocols outlined by public health officials, House Bill 838 which grants police new protections related to “bias motivated intimidation,” and a bill that will allow for home delivery of alcohol. The Governor previously signed into law the Georgia Hate Crimes bill.

Finally, the Governor has stated that he intends to call a Special Session of the General Assembly to clear up any technical concerns over HB 105, which grants a state tax exemption on federal aid received by Hurricane Michael victims. Under the Georgia Constitution, a Special Session can only deal with those issues specifically cited by the Governor in his official call; however, there is speculation that the Governor may add additional issues to the list of items the General Assembly can address, in particular the Budget.  Therefore, stay tuned!

Georgia 2020 Legislative Wrap-up

After a COVID-19 induced hiatus the General Assembly returned to Atlanta for a two week sprint to Sine Die. While the main focus was passing a budget under significant revenue shortfalls the General Assembly was able to pass several other pieces of legislation including a historic hate crimes bill, surprise billing restrictions and two constitutional amendments among others.

Now that the 2020 session has officially ended legislators will start ramping up for what is sure to be a contentious election season.

1. Budget 

The Georgia General Assembly temporarily adjourned in March without fulfilling its one constitutional obligation — passing a budget. They completed that task as the 2020 special session closed, a day before the start of the new fiscal year. Gov. Brian Kemp promptly signed the budget for Fiscal Year 2021 on Tuesday June 30th finalizing the state’s $26 billion spending plan which includes about $2.2 billion in cuts.

Some highlights of the updated budget include:

K-12 Public Education

  • $950 million cut from the Quality Basic Education program, the formula used to calculate state spending for K-12 public education
  • $142 million added for enrollment growth and teacher training
  • $8.8 million added to the Governor’s Office of Student Achievement

Higher Education

  • $242 million cut to schools in the University System of Georgia and $36 million cut to schools in the Technical College System of Georgia
  • 12 percent cut to Adult Education
  • 11 percent cut to agricultural programs including the Cooperative Extension Service
  • $11 million in cuts to Dual Enrollment expected from the 30-hour cap and limits on courses students can take created in HB 444
  • $1 million added to the REACH Georgia scholarship program, a needs-based mentoring and scholarship program; all other state-funded scholarships will see a 10 percent cut

Behavioral Health and Developmental Disabilities

  • $91 million cut to the Department of Behavioral Health and Developmental Disabilities budget
  • $22.7 million cut to child and adolescent mental health services, including prevention programs and supported education and employment services
  • $7.2 million cut to adult mental health services, including cuts to core behavioral health services, reductions in peer workforce training and services and cuts to housing vouchers for people with mental illnesses
  • $5.7 million cut to adult substance abuse services, mostly for funds that would expand residential treatment services

Community Health

  • Total state funding increased by $178 million, mostly to account for higher projected growth for Medicaid
  • $19.7 million added to provide six months of Medicaid coverage for new mothers; this coverage extension must still receive federal approval
  • $12 million added to increase funding available for Rural Hospital Stabilization grants

Public Health

  • $8.2 million in cuts to the Department of Public Health budget
  • Funding restored for grants to local health departments
  • $2.3 million reduction in funding for trauma center readiness and uncompensated care

Human Services

  • $34 million cut to the Department of Human Services (DHS) budget
  • $46 million cut in Temporary Assistance for Needy Families (TANF) funds
  • $3.7 million in cuts to vacant positions in child welfare
  • $3 million in cuts to vacant positions at the state office for DHS

2. Hate Crimes Bill

On Friday June 26th, Gov. Brian Kemp signed a hate-crimes measure into law. As such, Georgia is no longer on the ever-shrinking list of states without hate crime legislation. The law allows for enhanced criminal penalties to be levied against those who target their victims on the basis of race, gender, sexual orientation, sex, national origin, religion, or physical or mental disability.

The bill cleared the final hurdle after Senate leaders abandoned efforts to treat police officers as a protected class.

The Hate Crimes Bill passed the legislature on a wave of public support led by Georgia’s most significant businesses and political leaders. The Dentons Public Policy team played a leading role in the effort as lobbyists for the Anti-Defamation League.

3. Safe Harbor Bill

Georgia will join a short list of states that are proactively protecting businesses from civil liability related to the COVID-19 virus. Senate Bill 359 passed both houses of the state legislature and now awaits the signature of the Governor.

The liability legislation would let Georgia businesses and hospitals waive liability for coronavirus-related claims so long as they post certain warning signs except in cases where the entity is found to have committed “gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.”

4. Fee Dedication

This November, Georgia voters will decide on a constitutional amendment that would give lawmakers the power to require fees be spent for the purpose that they were originally dedicated. This issue is often referred to in the context of tire fees.

If you buy a new tire in Georgia, there’s a $1 fee that gets tacked onto the bill, called the Scrap Tire Management Fee. It’s supposed to go toward cleaning up illegal tire dumps in the state and other recycling and trash programs. But often, lawmakers have directed more than $50 million from the scrap tire fee to Georgia’s general fund, according to the Association County Commissioners of Georgia (ACCG), which is Georgia’s county association.

The same can be said about the fee that the state collects at landfills. The money is intended for hazardous waste site cleanup, but according to the ACCG, about $100 million from that fund has ended up in the general fund in the past 10 years.

The constitutional amendment, if approved by voters, would give lawmakers the power to specifically dedicate certain tax dollars to specific uses.

5. Sovereign Immunity

In addition to the constitutional amendment on fee dedication, Georgians will also vote on whether to make it easier to sue the state and local governments under a proposed constitutional amendment given final passage Tuesday by the state House. The lawmakers were reacting, in part, to a state Supreme Court decision that state and local governments can only be sued if they have waived a legal doctrine called sovereign immunity.

The amendment would allow Georgians to sue in state court to protect their rights and ensure governments follow the law, but would not allow judges to award damages or attorney’s fees. The amendment would also prohibit people from suing individual officials within a government.

Former Gov. Nathan Deal and Gov. Brian Kemp both vetoed previous legislative attempts to broaden the grounds for suits against the government. But the Governor has no authority to veto a proposed constitutional amendment.

6. Surprise Medical Bills

Lawmakers passed legislation that now awaits the Governor’s signature to limit unexpected medical bills. Gov. Brian Kemp is expected to sign after naming surprise billing reform as one of his top priorities for the 2020 session.

The legislation is intended to protect Georgians from unexpected out of network bills from physicians performing medical procedures at “in-network” facilities. Legislators and consumer advocacy groups say if House Bill 888 becomes law, it will lower health care costs for many patients, add pricing transparency, and remove patients from billing negotiations between insurance companies and health care providers. 

Notably, the bill focuses strictly on services – both emergency and non-emergency – from an out-of-network provider at in-network facilities. It prohibits insurance companies from surprise billing for emergency services even if the health care provider is outside of the company’s coverage network. Patients are supposed to also receive an estimated cost for any procedure scheduled outside of their covered hospital system. 

7. Alcohol Delivery

A bill allowing home delivery of beer, wine, and liquor passed the Georgia legislature and will become law pending Governor Kemp’s signature. House Bill 879, would permit beer, wine, and liquor to be delivered directly to people’s homes from restaurants, bars, convenience stores, grocery stores and package stores.

The bills requires alcohol home deliveries to only be accepted by someone 21 years or older and with proper ID. The bill leaves the decision to allow for home delivery up to local municipalities.

Conclusion

Georgians are rightly examining closely the actions and inactions of its state and local governments this summer as we continue to seek ways to contain the COVID-19 pandemic, restart our ravaged economy, and address fundamental questions over race and proper law enforcement. The General Assembly attempted to address many of these concerns but more work will clearly need to be done when it returns six months from now for its 2021 session.

Between now and then, however, we have a spirited election in November. Georgia is clearly viewed by both parties as an electoral swing state. Not only is the state likely to be in contention on the presidential level but with two close US Senate races, three open Congressional seats, and Democrats looking to either narrow or erase entirely Republicans fifteen seat majority in the State House, a political battle royal lies ahead over the next few months.

Georgia’s 2020 Primary Election Results

The 2020 Georgia Primary is behind us. Unfortunately, in some respects, the administrative process has overshadowed the results. Adjusting to the new normal caused by the COVID-19 pandemic, problems with getting absentee ballots to folks wishing to vote by mail, a new electronic voting machine system, difficulties with training new poll workers, and long lines and delays at Primary Election Day precincts have led to finger pointing between the Georgia Secretary of State’s office and local county election boards. All of this will need to be worked out before the November General Election.

There are still thousands of absentee votes still to be counted statewide so many close races are still in play. With that said, here are some of the more interesting election results from Tuesday’s primary that we know at the present time:

Presidential Primary

As expected, Joe Biden won handily with 83% in the Democratic Primary. Still, Bernie Sanders received 10% despite having dropped out of the race and conceding in March.

US Senate — Democratic Primary

Despite a crowded seven way primary, Jon Ossoff has a commanding lead hovering back and forth at the needed 50% + 1 position to avoid a runoff against his second place rival former Columbus Mayor Teresa Tomlinson at 15%. If late returns cannot push him over 50%, he will be forced into an August 11th runoff against Tomlinson. The winner will take on incumbent Senator David Perdue in November.

Contested Supreme Court Races

Two Supreme Court appointees by former Governor Nathan Deal beat back challenges to win a full term. Justice Sarah Warren easily won with 78% while Justice Charlie Bethel beat back a strong challenge from former State Representative Beth Beskin 53% to 47%.

Congressional Races

Georgia has three open congressional races — the 7th in Gwinnett and Forsyth Counties, the 9th in the mountains of North Georgia, and the 14th in Northwest Georgia. The 7th is most likely to be a close race in November given the fact that retiring Republican Rob Woodall only squeaked to re-election in 2018 by a few hundred votes.  Woodall’s 2018 Democratic challenger Georgia State Professor Carolyn Bourdeaux holds a commanding lead in a crowded race over second place finisher State Representative Brenda Romero, 46 to 14%. A runoff between Bordeaux and Romero will be held August 11th. On the Republican side, former Army doctor Rich McCormick won his crowded primary with 55%.

In the 9th Congressional race, State Representative Matt Gurtler and Gun Store Owner Andrew Clyde, with 22 and 19% respectively, edged out a crowded Republican field for runoff spots on August 11th. The winner of the runoff will face Brooke Siskin in November in this historically overwhelmingly Republican district.  

In the 14th Congressional Race, Tea Party favorite Marjorie Greene and Rome Doctor John Cowan are headed to a Republican Party runoff August 11th. There is no Democrat running in November.

One other Congressional race is likely to draw attention in November. Former Republican Congresswoman Karen Handel won her primary easily to set up a rematch against Congresswoman Lucy McBath in the 6th Congressional District. McBath defeated Handel in 2018.

State Legislative Races

Several incumbent legislators — including Democratic Senator Ed Harbison and Republicans Brandon Beach and Jeff Mullis, as well as House Minority Leader Bob Trammell — faced stiff primary opponents on Tuesday but appear to have beat back their challengers. However, Brunswick Republican Representative Jeff Jones was defeated by Buddy DeLoach, and five term Conyers Democrat Representative Pam Dickerson was beaten by newcomer Sharon Henderson. Also, three longtime Democratic Representatives Sharon Beasley-Teague and Michele Henson and Democratic Senator Horacena Tate were forced into runoffs for the first time in many years.

While many incumbents faced tough reelections, one veteran high profile legislator is making a return. Former State Representative and 2016 Gubernatorial Candidate Stacey Evans won a decisive primary victory in an Atlanta State House district. She has no Democratic opponent in the fall.  

Fulton County District Attorney Incumbent Paul Howard, who has run unopposed for Fulton County District Attorney since 2000, is currently trailing to primary challenger Fani Willis. Neither of the two are likely to break the 50% mark, Willis with 41% of the vote and Howard with 34% of the vote, and will be headed to a runoff.

Status of Executive Orders in Georgia – April 24, 2020

On March 13, President Donald Trump declared a national emergency due to the rapidly spreading coronavirus. Since that time the virus has exploded in the United States leading to four federal relief bills and a litany of executive orders on the state level. Georgia, home to over 22,000 cases, is beginning to open businesses pursuant to health and safety regulations laid out by Governor Kemp.

A Partial Summary of the State Executive Orders

Several State Executive Orders concerning COVID-19 have been executed by Governor Kemp since March 14. 

March 14th

The first executive order declared a Public Health Emergency, with the General Assembly concurring on March 16. Pursuant to that order broad powers were given the Governor per O.C.G.A. Sec. 38-3-51. The Governor used those powers to specifically direct the Georgia Department of Public Health and the Georgia Emergency Management Agency to fully activate their operations to address the emergency. Among other things, temporary health care licenses were authorized as well as other issues pertaining to infrastructure.  The second Executive Order authorized National Guard troops to aid in the preparation, response and recovery to this pandemic.

March 16th

The Governor closed elementary, secondary and post-secondary schools effective March 18.  This action was extended twice through the remainder of this academic year.

March 20th and 23rd

The Department of Community Health and other health care licensing Boards were granted additional emergency authority. The March 23 Order directed that the Department of Public Health mandate that persons with serious underlying health conditions “shelter in place.”  Bars were ordered closed and businesses could not allow more than ten persons to be gathered in a single location with everyone 6’ apart.  DPH was authorized to close non-compliant businesses and the State Patrol was authorized to assist in the enforcement of the Order.

April 2nd

All residents and visitors were required to “shelter in place,” unless they conducted or participated in “Essential Services,” the minimum basic operations of a business, performed necessary travel e.g. grocery shopping and doctor visits, or were a part of the workforce for “Critical Infrastructure.”  All businesses, essential and non-essential, were directed to screen and evaluate workers who exhibited signs of illness and enhance sanitation practices, as well as provide alternative points of sale e.g. curb pick-up.  Dine-in restaurant service was discontinued as well as gyms and the like.  The Governor also suspended any existing or future local government restrictive Orders.

April 3rd

Sheriffs were similarly authorized to enforce the prior Orders. 

April 8th

The Public Health State of Emergency was extended through May 13.

April 14th

The Governor proclaimed that employees, staff and contractors of healthcare institutions and facilities were considered auxiliary emergency management workers per O.C.G.A. Sec. 38-3-35, thus enhancing liability protection to those individuals and entities.

April 20th

The Governor authorized “elective” healthcare procedures to commence operation, as well as permitting gyms, hair salons and the like to open Friday, April 24 as long as they follow strict guidelines.  The ten-person, 6’ apart guidelines remain.  DPH entered into an agreement with Augusta University Health System to provide screening and testing services.  EMT providers and the like were similarly afforded auxiliary health status too. 

The April 23 Executive Order

Governor Kemp has issued new guidelines for the gradual opening of businesses. As it relates to the public, social distancing is still mandated with individuals strongly encouraged to wear face coverings while outside their home.  No businesses shall allow gatherings of persons. “Shelter in place” remains for all individuals at higher risk of severe illness, to include those persons who are 65 years of age or older, while still permitting grocery shopping etc.

With regard to Restaurants and dining services, effective Monday, April 27, no more than 10 patrons can be in a restaurant per 500 sq. ft. of public space [including waiting and bar areas]. 

All such restaurants and dining rooms must institute the following measures[1]:

  • Screen and evaluate workers who exhibit signs of illness, such as a fever over 100.4  degrees, cough, or shortness of breath;
  • Require such workers to not report to work or seek medical attention;
  • Implement teleworking for all possible workers;
  • Hold all meetings virtually, whenever possible;
  • Train all employees on the importance and expectation of increased frequency of handwashing and use of hand sanitizers, avoid touching hands to face;
  • Require all employees to wear face coverings at all times, cleaned or replaced daily;
  • Increase physical space between workers and patrons;
  • Discontinue the use of salad bars and buffets;
  • Thoroughly clean and sanitize the entire facility before resuming dine-in services and continue to do so regularly;
  • Between diners, clean and sanitize tabletops, commonly touched areas, and discarding single-use items;
  • Use rolled silverware and eliminate table presets;
  • Remove self-service drink, condiment and the like items;
  • Disposable paper menus are strongly encouraged;
  • Clean and sanitize restrooms regularly;
  • Implement procedures to increase cleaning and sanitizing of surfaces in the back-of-house;
  • Update floor plans for dining areas, ensuring at least 6’ of separation from seating to  seating;
  • Limit party size at tables to no more than 6;
  • Where practicable, consider a reservations-only business model;
  • Post signage that no one with a fever or other symptoms of COVID-19 is permitted in the facility;
  • Provide hand sanitizer for use by patrons;
  • Use technological solutions where possible to reduce person-to-person interaction such as mobile ordering and contactless payment options; and,
  • Seek to design a process for patron separation while waiting to be seated, going to the restroom, and/or entering or exiting the premises.

Retail food businesses shall:

  • Limit the number of patrons inside the store to 50% of fire capacity or 8 patrons per 1,000 sq. ft.
  • Encourage patrons to use hand sanitizer upon entering
  • Encourage non-cash payments when possible
  • Sanitize the doors at least 3 times each day
  • Install protective screens or like mitigation measures where worker-patron interactions are likely
  • Provide additional hand sanitizer within the business.

Food establishments shall:

  • Encourage scheduling specific hours of operation for vulnerable populations to shop without other patrons
  • Reduce store hours to increase cleaning and sanitation while the store is closed
  • Encourage social distancing such as protective screens at service counters and at cash registers
  • Signage and decals on social distancing, and the use of one-way aisles. 
  • Workers should be given PPE as available and patrons should be encouraged to wear face coverings
  • Discontinuing sampling or cooking stations
  • Closing self-serve salad bars and buffets
  • Restrooms should be checked and cleaned/sanitized regularly
  • Allow time for frequent hand washing for employees
  • Adding hand sanitizing stations around stores for patrons and employees.

Gyms shall implement additional measures to prevent the spread of COVID-19, to include:

  • Signage restricting use by patrons that have been diagnosed with the virus, had symptoms or contact with a person that has or is suspected to have COVID-19
  • Enhance sanitation procedures
  • Screen patrons at the entrance for fever cough or shortness of breath
  • Limiting occupancy to enforce social distancing
  • Halting group classes, in-facility child care services
  • Closing pools, basketball courts, hot tubs etc. within the facility
  • Cleaning and sanitizing bathrooms and locker room regularly

Hair designers, massage therapists and the like shall:

  • Provide their services by appointment only
  • Require patrons to sanitize their hands upon entering the facility and before any treatment
  • Post signs that at the entrance and at each workstation that any patron who has symptoms must reschedule their appointment
  • Requiring patrons to wait in their car until their service prover is ready
  • Staggering or spacing workstations more than 10’ apart
  • Staggering work schedules so that no more than 50% of the normal number of employees providing services will be in the business at a time
  • Requiring PPEs as available
  • Sanitizing all equipment used by employees and patrons between each visit
  • Utilizing disposable materials and supplies as much as practicable
  • Training all employees on additional measures.

Indoor movie theatres shall:

  • Have each patron at least 6’ apart
  • Seats must be thoroughly sanitized before and after each showing
  • Assure social distancing
  • Party rooms may not host parties or gatherings
  • Close any playgrounds or arcade rooms.

Bowling alleys shall:

  • Assure similar social distancing and sanitizations
  • Allow groups of 6 or less per lane, seated 6’ apart
  • Score keeping machines must be thoroughly sanitized before and after each use
  • Bowling balls and shoes must be thoroughly sanitized before and after each use.

People working outside without regular contact with other persons shall only be required to practice social distancing and implement sanitation processes.

Dentists and Optometrists must follow their Association guidelines.

Ambulatory Surgical Centers have the similar restrictions to include screening patients before visits and monitoring their health prior to starting surgery, requiring staff to self-monitor and screen for viral symptoms daily, continue to use PPE, follow waiting room spacing guidelines social distancing and face masking. To the extent possible, hospitals, healthcare institutions, medical facilities and nursing homes should offer in-room dining.

Critical Infrastructure can continue in-person operations with implementation of the enhanced measures listed above, e.g. Screening and evaluating workers, enhanced sanitation, disinfecting common surfaces regularly, prohibiting gatherings, implementing teleworking for all possible workers, and suspending the use of Personal Identification Number [PIN] pads, electronic signature capture and the like.

All non-Critical Infrastructure businesses that continue in-person operations shall implement the same types of measures.

All businesses should implement the following measures:

  • Provide Personal Protective Equipment as available;
  • Provide disinfectant and sanitation products for workers to clean their workspace and equipment; and,
  • Increase physical space between worksites to at least 6’.

Public swimming pools, performance venues and amusement rides shall remain closed.

Any law enforcement officer, after providing reasonable notice and issuing at least two citations for violations, is authorized to mandate the closure of such establishment.

The Order is in effect from May 1 until May 13.  In the meantime, local governments can make, amend or rescind order related to emergency management as long as they are not inconsistent with the Governor’s Orders or DPH.

Conclusion

The latest Order loosens restrictions for the fitness and food industries but keeps the balance of restrictions in place through May 13. Concerns raised by President Trump, White House Economic Adviser Larry Kudlow and our own Lt. Gov. Geoff Duncan, warrant serious discussion of legislation at the federal and state levels to limit the liability of businesses that follow strict guidelines but still have customers or employees become infected with COVID-19.  Such businesses, following the pandemic, certainly don’t have the resources to face an onslaught of such suits.  Liability protections may be necessary to re-start our state and national economy.


[1] This is a partial list and does not relate to the operation of dine-in services in hospitals, healthcare facilities, nursing homes or long-term care facilities.

Georgia COVID-19 Update

Introduction

As of April 2nd 2020 the State of Georgia has 5,444 confirmed cases of COVID-19 and has suffered 176 deaths. Yesterday, Governor Kemp issued a state-wide stay at home order via Executive Order to Ensure a Safe and Healthy Georgia. This most recent executive order rescinds and replaces the executive order issued on March 23rd and suspends any local ordinances passed since March 1st that were adopted with the stated purpose or effect of responding to the COVID-19 crisis. In short, this is operative law in the entire state. Highlights of the executive order include:

  1. State-wide stay at home order for all residents
  2. Restrictions on all visitors to those under stay at home orders
  3. Limiting all travel outside of the home unless fulfilling essential services as defined in the order
  4. Constraining business to minimum basic operations as defined in the order, but for Minimum Basic Business Operations and “critical infrastructure” as defined by the US Department of Homeland Security
  5. Prohibits dine-in service at restaurants and social clubs but permits takeout, curbside, pick-up and delivery services

The Georgia Department of Economic Development has been authorized to issue guidance to any business, corporation, organization or trade group regarding its status as critical infrastructure.

In regard to enforcement, the Georgia National Guard and Department of Public Safety are tasked with providing the resources as requested to assist with the enforcement of the Order. Moreover, the Department of Public Health, the Department of Public Safety, or any other state department or state officer deputized by the Governor or Georgia Emergency Management and Homeland Security are authorized to mandate the closure of any business, establishment, corporation, non-profit corporation or organization that does not comply with the Order for a period not to extend beyond the term of the Order.

Any person who violates the Order will be guilty of a misdemeanor.

Notably, the Order, which goes into effect on Friday April 3, only extends until April 13th. That is, in part, due to the fact that the state of emergency, declared on March 14th, is only in place for a maximum of 30 days per OC.G.A. 38-3-51 9 (a). That being said, the resolution passed by the Georgia General Assembly did not place a time limit on further concurrence should the Governor extend the State of Emergency. However, it did assert their right to terminate the state of emergency at any time. As such, there is a good argument that the General Assembly has given the governor the power to renew after 30 days without the necessity of it reconvening to ratify the renewal. 

Executive Order to Ensure a Safe and Healthy Georgia

Per the April 2nd Executive Order All residents and visitors of the State of Georgia shall practice social distancing and sanitation in accordance with this Order and guidelines published by the Centers for Disease Control and Prevention

  1. No business, establishment, corporation, non-profit corporation, organization, or county or municipal government is permitted to allow more than ten (10) persons to be gathered at a single location if such gathering requires persons to stand or to be seated within six (6) feet of any other person. This does not apply to cohabitating persons outside of their homes, family units or roommates residing together in private homes, or entities defined as “Critical Infrastructure”
  2. All residents and visitors of the State of Georgia are required to shelter in place within their homes or places of residence, meaning remaining in their place of residence and taking every possible precaution to limit social interaction to prevent the spread or infection of COVID-19 to themselves or any other person, unless they are:
    • Conducting and participating in Essential Services
    •  Performing Necessary Travel
    • Are engaged in the performance of, or travel to and from, the performance of Minimum Basic Operations for a business, establishment, corporation, or organization not classified as Critical infrastructure; or
    • Are part of the workforce for Critical Infrastructure and are actively engaged in the performance of, or travel to and from their respective employment
  3.  Essential Services permitted pursuant to the provisions of this Order are limited to the following:
    • Obtaining necessary supplies and services for family or household members, such as food and supplies for household consumption and use, medical supplies or medication, supplies and equipment needed to work from home, and products needed to maintain safety, sanitation, and essential maintenance of the home or residence. Preference should be given to online ordering, home delivery, and curbside pick-up services wherever possible as opposed to in-store shopping.
    • Engaging in activities essential for the health and safety of family or household members, such as seeking medical, behavioral health, or emergency services.
    • Engaging in outdoor exercise activities so long as a minimum distance of six (6) feet is maintained during such activities between all persons who are not occupants of the same household or residence.
  4. Necessary Travel permitted under this Order is limited to such travel as is required to conduct or participate in Essential Services, Minimum Basic Operations, or Critical Infrastructure as defined by this Order.
  5. Minimum Basic Operations are limited to:
    • The minimum necessary activities to maintain the value of a business, establishment, corporation, non-profit corporation, or organization, provide services, manage inventory, ensure security, process payroll and employee benefits, or for related functions. Such minimum necessary activities include remaining open to the public subject to the restrictions of this Order.
    • The minimum necessary activities to facilitate employees or volunteers being able to work remotely from their residences or members or patrons being able to participate remotely from their residences.
    • Instances where employees are working outdoors without regular contact with other persons, such as delivery services, contractors, landscape businesses, and agricultural industry services.
  6. All businesses, establishments, corporations, non-profit corporations, or organizations that are not Critical Infrastructure shall only engage in Minimum Basic Operations as defined in this Order during the effective dates of this Order. Such entities shall also implement measures which mitigate the exposure and spread of COVID-19 among its workforce. Such measures shall include the following:
    • Screening and evaluating workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
    • Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;
    • Enhancing sanitation of the workplace as appropriate;
    • Requiring hand washing or sanitation by workers at appropriate places within the business location;
    • Providing personal protective equipment as available and appropriate to the function and location of the worker within the business location;
    • Prohibiting gatherings of workers during working hours;
    • Permitting workers to take breaks and meals outside, in their office or personal workspace, or in such other areas where proper social distancing is attainable;
    • Implementing teleworking for all possible workers;
    • Implementing staggered shifts for all possible workers;
    • Holding all meetings and conferences virtually, wherever possible;
    • Delivering intangible services remotely wherever possible;
    • Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
    • Prohibiting handshaking and other unnecessary person-to-person contact in the workplace;
    • Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen;
    • Suspending the use of Personal Identification Number (“PIN”) pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and credit agencies;
    • Enforcing social distancing of non-cohabitating persons while present on such entity’s leased or owned property;
    • For retailers and service providers, providing for alternative points of sale outside of buildings, including curbside pick-up or delivery of products and/or services if an alternative point of sale is permitted under Georgia law;
    • Increasing physical space between workers and customers;
    • Providing disinfectant and sanitation products for workers to clean their workspace, equipment, and tools;
    • Increasing physical space between workers’ worksites to at least six (6) feet.
  7. The term “Critical Infrastructure” shall refer to businesses, establishments, corporations, non-profit corporations, and organizations as defined by the US Department of Homeland Security as “essential critical infrastructure workforce,” in guidance dated March 19, 2020, and revised on March 28, 2020, and those suppliers which provide essential goods and services to the critical infrastructure workforce as well as entities that provide legal services, home hospice, and non-profit corporations or non-profit organizations that offer food distribution or other health or mental health services. The operation of Critical Infrastructure shall not be impeded by county, municipal, or local ordinance. Critical Infrastructure that continues in-person operation during the effective dates of this Order shall implement measures which mitigate the exposure and spread of COVID-19 among its workforce. Such measures may include, but shall not be limited to:
    • Screening and evaluating workers who exhibit signs of illness,  such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
    • Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;
    • Enhancing sanitation of the workplace as appropriate;
    • Requiring hand washing or sanitation by workers at appropriate places within the business location;
    • Providing personal protective equipment as available and appropriate to the function and location of the worker within the business location;
    • Prohibiting gatherings of workers during working hours;
    • Permitting workers to take breaks and lunch outside, in their office or personal workspace, or in such other areas where proper social distancing is attainable;
    • Implementing teleworking for all possible workers;
    • Implementing staggered shifts for all possible workers;
    • Holding all meetings and conferences virtually, wherever possible;
    • Delivering intangible services remotely wherever possible;
    • Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
    • Providing disinfectant and sanitation products for workers to clean their workspace, equipment, and tools;
    • Prohibiting handshaking and other unnecessary person-to-person contact in the workplace; and
    • Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen; and
    • Suspending the use of Personal Identification Number (“PIN”) pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and credit agencies.
  8. The Georgia Department of Economic Development is authorized to issue guidance to any business, corporation, organization, or industry trade group regarding its status as Critical Infrastructure. This guidance shall not require a finding of fact but shall be in writing and shall be considered a final agency action for the purpose of proceedings under Code Section 50-13-19.
  9. All restaurants and private social clubs shall cease providing dine-in services. Takeout, curbside pick-up, and delivery are permitted in accordance with the provisions of this Order. This provision shall not limit the operation of dine-in services in hospitals, healthcare facilities, nursing homes, or other long-term care facilities; however, to the extent possible, such facilities should offer in-room dining.
  10. All gyms, fitness centers, bowling alleys, theaters, live performance venues, operators of amusement rides as defined by Code Section 25-15-51, body art studios permitted pursuant to Code Section 31-4o-2, businesses registered pursuant to Code Sections 43¬10-11 and 43-10-18, estheticians as defined by Code Section 43-10¬1(8), hair designers as defined by Code Section 43-10-1(9), persons licensed to practice massage therapy pursuant to Code Section 43¬24A-8, and businesses which possess a license to operate as or otherwise meet the definition of “bar” as defined by Code Section 3¬1-2(2.1), shall cease in-person operations and shall close to the public while this Order is in effect.
  11. Persons required to shelter in place under any provision of this Order shall not receive visitors, except as follows:
    • Visitors providing medical, behavioral health, or emergency services or medical supplies or medication, including home hospice;
    • Visitors providing support for the person to conduct activities of daily living or instrumental activities of daily living;
    • Visitors providing necessary supplies and services, such as food and supplies for household consumption and use, supplies and equipment needed to work from home, and products needed to maintain safety, sanitation, and essential maintenance of the home or residence; or
    • Visitors received during end-of-life circumstances.
  12. To the extent practicable under the circumstances, visitors shall maintain a minimum distance of six (6) feet between themselves and all other occupants of the person’s home or residence. Any visitors visiting for the sole purpose of delivering medication, supplies, or other tangible goods shall, to the extent practicable, deliver such items in a manner that does not require in-person contact or require the deliverer to enter the person’s home or residence.
  13. The provisions of this Order related to visitors listed in the immediately preceding paragraph shall be strictly enforced against nursing homes or other long-term care facilities, including inpatient hospice, assisted living communities, personal care homes, intermediate care homes, community living arrangements, and community integration homes.
  14. The Department of Public Health, the Department of Public Safety, or any other state department or state officer deputized by the Governor or the Georgia Emergency Management and Homeland Security Agency are, after providing reasonable notice, authorized to mandate the closure of any business, establishment, corporation, non-profit corporation, or organization not in compliance with this Order for a period not to extend beyond the term of this Order.
  15. Pursuant to Code Section 38-3-51, the powers of counties and cities conveyed in Titles 36 and 38, including those specific powers enumerated in Code Sections 36-5-22.1 and 36-35-3 are hereby suspended to the extent of suspending enforcement of any local ordinance or order adopted or issued since March 1, 2020, with the stated purpose or effect of responding to a public health state of emergency, ordering residents to shelter-in-place, ordering a quarantine, or combatting the spread of coronavirus or COVID-19 that in any way conflicts, varies, or differs from the terms of this Order. Enforcement of all such ordinances and orders is hereby suspended and no county or municipality shall adopt any similar ordinance or order while this Order is in effect, except for such ordinances or orders as are designed to enforce compliance with this Order

Critical Infrastructure

The Executive Order exempts “Critical Infrastructure” from the shut-down order and stay at home provisions. “Critical Infrastructure” refers to businesses, establishments, corporations, non-profit corporations, and organizations as defined by the US Department of Homeland Security as “essential critical infrastructure workforce,” in guidance dated March 19, 2020, and revised on March 28, 2020. It also includes those suppliers which provide essential goods and services to the critical infrastructure workforce as well as entities that provide legal services, home hospice, and non-profit corporations or non-profit organizations that offer food distribution or other health or mental health services. The order makes it clear that the operation of Critical Infrastructure shall not be impeded by county, municipal, or local ordinance.

The US Department of Homeland Security Guidance that is referenced in the executive order exempts businesses in the following industries:

  • Health Care/Public Health
  • Law Enforcement, Public Safety, and Other First Responders
  • Food and Agriculture
  • Energy (including electricity, petroleum, natural gas, natural gas liquids, propane and other liquid fuels)
  • Water and Wastewater
  • Transportation and Logistics
  • Public Works and Infrastructure Support Services
  • Communications and Information Technology
  • Other Community or Government Based Operations and Essential Functions
  • Hazardous Materials
  • Financial Services
  • Chemical
  • Defense Industrial Base
  • Commercial Facilities
  • Residential/Shelter Facilities and Services
  • Hygiene Products and Services

Select Industry Profiles

Residential: The Department of Homeland Security exempts residential construction workers in relation to activities to ensure additional housing units that can be made available to combat the nation’s existing housing supply shortage.

Commercial Facilities: Workers who support the supply chain of building materials from production through application/installation, including cabinetry, fixtures, doors, cement, hardware, plumbing, electrical, heating/cooling, refrigeration, appliances, paint/coatings, and employees who provide services that enable repair materials and equipment for essential functions are exempt. Additionally, workers supporting ecommerce through distribution, warehouse, call center facilities, and other essential operational support functions and workers in hardware and building materials stores, consumer electronics, technology and appliances retail, and related merchant wholesalers and distributors – with reduced staff to ensure continued operations are exempt. Finally, those distributing, servicing, repairing, installing residential and commercial HVAC systems, boilers, furnaces and other heating, cooling, refrigeration, and ventilation equipment are exempt.

Critical Manufacturing: Any manufacturing facility that produces materials necessary to sustain other “critical infrastructure” is exempt. This includes manufacturing facilities that produce materials for medical supply chains, industrial minerals and metals, critical chemicals, food and agriculture etc.

Transportation: The exemptions provided to the transportation industry are focused on maintaining logistical networks to sustain the critical industries. Additionally, mass public transit service workers are permitted to continue work as they provide a portion of the population with needed mobility.

Financial: Any workers need to provide, process and maintain systems for processing, verification, and recording of financial transactions and services, including payment, clearing, and settlement; wholesale funding; insurance services; consumer and commercial lending; and capital markets activities.

Emergency Order Powers

As previously mentioned, the action taken by Governor Kemp in relation to COVID-19 today is pursuant to the State of Emergency Order issued on March 14th which was ratified by the General Assembly, two days later, on March 16th

Under O.C.G.A. §38-3-51, the Governor can declare a State of Emergency due to a health crisis but must also call the General Assembly into a special session “for the purpose of concurring with or terminating the public health emergency.”  The state of emergency remains in effect for 30 days unless expressly extended by the Governor.

Among the powers enumerated by O.C.G.A. §38-3-51, the state of emergency gives the governor considerable power to deal with our present health care crisis. For more information on the powers given to the Governor and Department of Health via the State of Emergency order see our March 14th Soapbox blog post, “Georgia Governor Brian Kemp Declares State of Emergency to Deal with Coronavirus Pandemic and Calls a Special Session of the General Assembly”.

DPH Administrative Orders

Pursuant to the Georgia Code and expanded powers granted under the Emergency declaration, the Department of Public Health issued two Administrative Orders, one on March 23rd and one on March 27th. Further regulatory announcements will likely come due to the latest stay at home executive order.

The March 23rd order addressed isolation and quarantine policies and procedures. Now that the Governor has put in place a state-wide stay at home order that applies to everyone, these administrative regulations are no long applicable.

Similarly, much of the March 27th administrative order is no longer relevant aside from administrative regulations on the staff of any Nursing, Long-Term Care Facilities and Early Child Education Programs, Non-profit food services and any other businesses licensed and monitored by DHS. Said regulations were reaffirmed and in some cases strengthened in the executive order.

Conclusion

The state-wide stay at home Order ends what was a local government driven process that resulted in a myriad of restrictions throughout the state. However, the Executive Order will certainly be followed up by regulations from the Department of Public Health and the publication of a process by which the Department of Economic Development will determine critical versus non-critical business in relation to the US Department of Homeland Security Guidance. As previously mentioned the Executive Order extends through April 13.

If you have any questions please contact the Dentons Public Policy Team.

US Policy Scan 2020

Policy Scan 2020 booklet

The Dentons US Public Policy Team is pleased to release its annual Policy Scan, our comprehensive overview of the policy and political landscape in 2020. We look to highlight movements across the spectrum of policy areas in the coming year. With our team’s unmatched reach, we not only look at issues in our nation’s capital but in every state capital in the union as well. We review the US Supreme Court docket and briefly profile the major cases of the term, both those still to be argued and those already argued with decisions pending. We look at trends across the globe and their impact on US policy. Finally, we delve into Election 2020 at the presidential, congressional, gubernatorial and state AG levels.

US Policy Scan 2020 takes deep dives into the turbulent political and policy waters swirling around health care, including drug pricing; energy and climate change; financial services regulation; tax cuts; foreign relations; trade; immigration; telecommunications, transportation and infrastructure; defense and homeland security; privacy; and other hotly-debated areas of government regulation and policy.

Other features include:

  • Year In Review
  • 2020 Congressional Calendars
  • Policy Review
  • A view from the water’s edge
  • Campaign 2020

And as in years past, we also include a review of state legislative activity in 2019, and an overview of pending legislation and the policy drivers that will shape state legislative and executive branch activity in 2020.

We hope that Policy Scan gives you the foundation to tackle obstacles and succeed in what is sure to be a chaotic and unprecedented year ahead.