Ending the Pandemic State of Emergency

When the pandemic caused by COVID-19 struck the Commonwealth of Kentucky, Governor Andy Beshear issued a statewide state of emergency effective March 6, 2020. Cities in the commonwealth quickly followed suit to ensure continued operation of local government. Two years later, these declarations remain in effect.

The 2022 Kentucky General Assembly will likely terminate the March 6, 2020, state of emergency declaration this month. Senate Joint Resolution 150 would terminate the state of emergency declaration and any other related orders or regulations. Regardless of when the statewide declaration of the state of emergency ends, cities need to know what impact this has on local governments’ state of emergency declarations.

The end of the statewide declaration will not impact cities that crafted local state of emergency declarations based upon the KLC model executive order. These cities will make their own policy decision about when to end the local state of emergency declaration. Because legal challenges may arise to any unilateral executive action, city officials need to evaluate how COVID-19 will continue to impact current operational needs. Ending the local state of emergency will require a separate executive order. KLC has a draft executive order ending the state of emergency here.

Cities that included language to end the local state of emergency when the state declaration ends do not need to take additional action. However, officials need to know what impact, if any, the end of the state of emergency may have on city operations.

Should another COIVD-19 outbreak threaten city operations, local governments can later issue state of emergency declarations pursuant to KRS 39B.070. Unlike the restrictions on state executive emergency powers in KRS 39A.100, nothing in KRS 39B.070 – which authorizes local executives to declare a state of emergency – restricts local governments from later issuing a state of emergency declaration related to COVID-19, if necessary.

Some city officials have expressed concerns about the potential impact on federal funding. Ending the local state of emergency due to the pandemic has no effect on eligibility for current federal grant programs. Specifically, American Rescue Plan Act (ARPA) state and local fiscal recovery funds do not require local governments to remain under a pandemic-related state of emergency.

However, ongoing premium pay established by ARPA is impacted. Providing employees premium pay for work performed after the state of emergency ends may prove difficult to justify. Compensating employees for work performed in the unusually hazardous conditions presented by the pandemic justifies how premium pay does not constitute an unauthorized bonus under the Kentucky Constitution. For this reason, city officials should use caution when seeking to provide premium pay beyond the end of the state of emergency.

For more information on this or any other matter, contact KLC Department of Municipal Law.