Graphs of today’s numbers, captured by Josh Spurgers:
Excerpts of Today’s Media Update
We’re highlighting portions of the media update that seem relevant, but we encourage you to watch the full update. If you find a part that seems like it should be called out here, let us know.
Arkansas Governor Asa Hutchinson [3:51]:
Let me come to the question that’s been bantered about in terms of a special session.
And I want to applaud the General Assembly for working through this issue. I know that I received a letter from a majority of the Senators expressing support for immunity/liability during this pandemic, both for health care workers as well as for small businesses that are trying to reopen. That was joined in a letter from the House members, that there was the majority of House members that supported that type of legislation and a call for a special session. And at the same time there was a call for the special session, there were a number of members who wanted the legislation that said, “We really don’t want to have to have a special session during this pandemic and during the challenging times that we have.”
And so, I have worked with the Speaker — Matthew Shepard is with us today, as well as the Senate Pro Tem Jim Hendren — and they have supported the idea of an executive order during the pandemic that would solve the challenge of the immunity/liability. And they have brought with them today — and I wanted to applaud Senator Scott Flippo for his leadership on this, as well as representative Robin Lundstrum, Representative Austin McCollum, and of course Senator Matt Pitsch as well. And so, all of them have been such great team members. And this is a General Assembly-initiated effort, because without the support of the legislation that was demonstrated, this would not have come about. And without the practical recognition — that this is not the best time for a special session — I would not be signing these executive orders today.
And before I go through the elements of the three executive orders that I will sign, I wanted to recognize the speaker first for his comments followed by Senator Hendren. And I will say that this does mean that there will not be a special session, but will be able to solve this challenge that we face through the executive order.
Matthew Shepherd, speaker of the Arkansas House of Representatives [6:28]:
I just want to thank the governor for his work on these three executive orders. As the governor alluded to, over the course of the last month or so, there’s been a growing discussion about should there be certain liability protections — specifically immunity — provided to certain aspects of the business and health care community, as well as to try and address maybe some of the issues that could arise it with regard to workers’ compensation. And I would like to thank Senator Hendren and the Senate for their work on this, along with House members. And we have representative Dalby, who is the chair of House Judiciary, who had worked in helping us to fine-tune some of the language. Representative Lundstrum has really championed this cause from the outset. And then Representative McCollum, the majority leader, has also taken a lead role in moving this forward and working in developing consensus.
And what became clear to me as I obtained feedback from many members was that there was strong consensus on the two bills that were circulated and that are the subject of these executive orders. But what also became clear — as the governor alluded to — was that there were various concerns various viewpoints raised with regard to, “Should we be called into a session at this particular point in time?” And in light of that, we worked with the governor’s office and that brings us to the signing of these executive orders today.
We know that this is something that the governor does not enter into lightly. Going back to his original declaration, we know that the governor takes these matters very seriously. And we look forward to continuing to work with the governor on a number of different issues. And there’s always the opportunity in the future to further address any of these issues that have been raised, as well as others, but for the time being, we feel like this is an adequate remedy to address many of the concerns and to send the message to our businesses and our employees that we appreciate them getting back to business, providing the necessary services to our citizens, and that if they are making the right effort, if they’re following those guidelines that are out there that the fear of litigation should be minimized.
Jim Hendren, president pro tempore of the Arkansas Senate [9:07]:
As in the cases of most progress it really took a lot of cooperation between both the House and the Senate and the executive branch. And I also want to thank Speaker Shepherd, Representative Dalby and Representative Lundstrum, Representative McCollum. They’ve been great to work with this this really got some momentum on the Senate end. Senator Hester, Senator Flippo, Senator Pitsch, many others pitched together to put a letter together to the governor that was very clear that businesses needed some protection as they opened up in this environment.
So many of them have been so battered by the loss of customer base, by mandatory shutdowns. And now, the thought that they’re going to open up try getting back on their feet and be hit with lawsuits was just something that was a real concern to so many that the Senate felt like it was important that we take action as several other states have done and continue to do. And sometimes, as you may know, senators don’t always agree and to get 23 out of 26 of the Republican caucus to agree on that letter — that it’s important policy, whether it be by executive session or executive order, or whether it be by a special legislative session — we felt the policy needed to be accomplished. But then the hard work of getting a policy that did what we wanted to do but also did not provide for blanket immunity for bad actors. And I and I appreciate again, especially Representative Dalby and Representative Shepherd for their patience as attorneys working with an engineer to try to hammer out the details of this. Because the way this legislation is intended is to not allow a free pass for bad actors, and in fact the only way you get this immunity is if you make a good-faith effort as a business to comply with CDC guidelines.
We still expect businesses to protect their employees, to provide safe workplaces, and this legislation ensures that that is accomplished. You don’t get the immunity if you’re a bad actor. And again, they really found a way that we could craft that language that accomplished that, but yet also still provided for some assurance to businesses that had this this fear that they could lose everything because of something beyond their control.
And so, I appreciate the teamwork that’s come in to putting this together. I appreciate the governor’s willingness to do this immediately with an executive order, because it is going to be more expeditious. As we found out through the process this immunity is not retroactive, so every day we waited was another day a business was at risk. So, I think it’s a good day for the businesses of Arkansas. It’s also a good day for the employees.
Another part that we haven’t talked about yet is the workman’s comp. Anybody who gets COVID-19 at work deserves to have those health care costs and those associated time off paid for, and the workman’s comp executive order will make sure that that is the case, because under current law that is not the case. So, I think it’s a victory for the workers and for the businesses and for Arkansas. So thank you for helping us put it together.
Arkansas Governor Asa Hutchinson [11:56]:
And now, if we could, let me go through a couple of the details and high points of the executive orders. First, as Senator Hendren mentioned on the executive order and workers’ compensation coverage, it assures workers’ compensation coverage for the employees. And so, COVID-19 is considered an occupational disease under the law. COVID-19 shall be an exception to the prohibition on compensation for ordinary diseases of life. That’s just the current law in the state of Arkansas. There does have to be a causal connection between employment and the disease. And it extends during the period of a public emergency. And so, on all of these executive orders, these extend during the emergency, and whenever the legislature convenes in January, they will be able to redress that.
The second executive order is on medical workers. Health care workers and providers are authorized to use crisis standards of care to respond to treat COVID-19 patients. Obviously, that is the environment in which we live. The health care providers as emergency workers are immune from civil liability, as long as they’re good actors. It does not extend to willful reckless or intentional misconduct. And again, this immunity is simply during the public health emergency.
And then, the third executive order is on business liability. All businesses and their employees shall be immune from civil liability as a result of exposure to COVID-19. The immunity does not applied to willful, reckless or intentional misconduct. And there is a presumption that the actions are not willful reckless if the business owner substantially complies with public health directives. Now, I hope that this serves as an incentive for good behavior, so that there is — whenever you follow the public health directives and the businesses, then you can have that presumption. It does not extend to workers’ compensation benefits, because that’s obviously something we want covered, so that’s not an exemption, it’s not part of the immunity coverage. And then finally, the immunity is effective from today until the emergency is terminated. And that, of course, is what an executive order is for during this time of emergency.
Governor Hutchinson [18:18]:
And [the number of hospitalizations is] a very important statistic, because as you test more, as you have more cases, the hospitalizations is so key to us.
Dr. Jose Romero, chief medical officer at the Arkansas Department of Health and incoming interim Secretary of Health [22:26]:
There are no linkages at this time to businesses such as restaurants, barbershops, religious centers, day cares or gyms.
Governor Hutchinson [23:04]
I just want to speak to Arkansas for just a moment. It’s we’re really at an important time, in terms of this pandemic. We obviously have a significant increase in cases in Northwest Arkansas. And we have a temptation to let down our guard because we’ve been dealing with it for a long time. And I hope that everyone knows that we’re taking it seriously. And our admonition continues to be to implement our strategy, which is to protect yourself and protect others by social distancing and wearing a mask when you’re out in public. And that’s very, very important for us. I want to applaud the businesses — they need to comply with this — in terms of restaurants that are doing a good job. But there’s a few outliers that we want to see make sure that they comply.
And I expect over the next week that the cases will continue to go up. That’s every expectation that I have. And so, I don’t believe that we’ve reached this second peak, which very well could be our first peak. And so, we need to take this continued seriously and to make sure we do everything we can to live, for the same time to control the spread of this virus.
… really hard to win a case — if you are a worker — to prove that your sickness was incurred at the workplace. Isn’t that rarely won?
Governor Hutchinson [24:59]:
Well, infectious disease is one of those areas that it is hard to make a workers’ comp case on, and there’s limited areas that you can. That’s why this executive order is important — to make sure that infectious disease exemption does not cut you out of workers’ comp. It says you can make a claim. There always has to be a causal connection, and certainly that can be a challenge. But it opens the door for their coverage, which is so important for the workers.
You’ve just made mention of it, that there are some outliers, but you’re really encouraging businesses to do the right thing, to be responsible. Why grant them greater immunity, then?
Governor Hutchinson [25:52]
Whenever there’s a fear of reopening, whenever there’s a worry about the lawsuits and bringing customers back or bringing the patrons back because the potential of lawsuits — as we’ve seen in so many other states — this is a chilling effect, and it can become a reality. I had my staff do a quick search about cases that have been filed across the country, and there are scores and scores of them, with others that are waiting in line two for the right time. I’m not aware of any in Arkansas. Of course, there are limitations on the courts’ proceedings in Arkansas.
Speaker Shepherd [26:54]:
Well I think it’s important to keep in mind that it’s not this is not absolute immunity. I mean, there are still exceptions for conduct that’s willful, reckless or intentional.
And Arkansas law provides for a number of different circumstances in which immunity is appropriate. I believe there’s volunteer immunity, there’s charitable immunity, there’s Good Samaritan immunity, there’s recreational land use immunity. There’s any number of things where the General Assembly has determined that there is a compelling public policy at stake.
And that’s what I think these executive orders — and the legislation that was drafted in the first place — exhibits, that there is a public policy at stake here, that we are wanting our businesses to be able to continue to do business, to be able to provide those jobs, and that we’re trying to provide some additional level of protection from just frivolous litigation. And I think everybody — to an earlier comment — I think it’s been widely agreed to, probably on all sides of the issue, that causation, with regard to a virus or any type of disease, can be very difficult in the first place. But just because it’s difficult doesn’t mean that there aren’t even the possibility and the threat of litigation. And again, this is not an absolute bar to litigation. If an employer or otherwise is not acting in good faith or is acting in a way that is willful or reckless, then there’s still certainly that possibility for them to be found liable.
Senator Hendren [28:40]:
I think the reason the Senate got so involved in this so early was because I think there’s — sometimes we forget we’re in unchartered territories with regard to this pandemic. Never have we had a governor shut down hundreds and hundreds of businesses by executive order in order to avoid the spread of a disease that’s so devastating. And these businesses many of them have been decimated. And many of them have fear about open back up.
And with regard to your question on the outliers, the purpose of this legislation is to allow the outliers to still be dealt with but also to give some certainty to the people who are doing their best to try to survive in these challenging times. We’re talking about barbershops and gyms and hairdressers and nail salons, people who have one or two or three employees who, one frivolous lawsuit, when they were doing their best to comply, could be the final nail in their coffin. And this is an effort to try to give them the certainty and to surety in these uncharted waters to be able to go ahead and press ahead and open up.
I wanted to ask you about these orders. Why should customers feel comfortable going back to these businesses if they need this protection? Also, related to that, your message to Arkansans about where we are in terms of the numbers right now, does going into Phase Two, does that send a completely contradictory message to people? Are you worried that it’s causing people to let up on their behaviors?
Governor Hutchinson [30:23]:
Well first, there are two messages. One is, we’ve got to live life, we’ve got to be educated, we can’t have life on hold for six months to a year until there’s a vaccination. We have to be able to carry on life and business. And so, that is one message. And that is a challenge for us because that is almost contradictory or gives some people the idea that, well, everything’s fine.
And so, the second message is, we can only do those things whenever you protect yourself and you protect others and you follow the public health guidelines.
And so, we have to maintain those two messages they’re not contradictory. They’re complementary and we have to understand that.
Secondly, in terms of “What is the incentives for business?” Businesses want to be able to maintain a patron base, a customer base. It is about the customer. And so, they want them to feel safe there and they have worked very hard to make sure that the patrons of restaurants or barbershops can feel safe. This incentivizes them because they can have almost a safe harbor, a presumption, if they follow CDC guidelines. That is exactly where we want to incentivize our employers even more than they already are naturally by their share of the marketplace.
I have two questions regarding our area. The first one is — I know the CDC is arriving and they will be here for a few weeks. Could you describe what exactly — what role they will be playing in northwest Arkansas and what exactly they will be doing here? And then secondly, there’s some concern about a new case of COVID-19 in the county jail. What’s going to be done to prevent a spread there like we’ve seen in other prison populations?
Dr. Romero [32:42]:
The CDC is here in northwest Arkansas. They will be looking at cases in the area. They will be attempting to identify links. And they will be assisting us in reaching out to the Hispanic/Latino community with regards to messaging for prevention.
A few words about the jail — we are aware of this. Dr. Patil is involved. Testing is underway and preventative measures are being put in place to prevent transmission within that situation.
Governor Hutchinson [33:17]:
And I’ll just add on the jail — I was in communication with Judge Moehring over the weekend, and my team at Corrections as well as the Health Department was in communication with them as well, on-site, working it, just like we have other correctional facilities across the country.
Dr. Dillaha was quoted in an article from The Daily Beast, and she said the surge was likely due to lifting of restrictions. What would your response be to that?
Dr. Romero [34:10]:
Thank you for that opportunity to clarify. That was a misquote. We are in the process of addressing that. She did not intend that to sound the way it did. And I will leave it at that until we have our clarification stated.
A few months ago, the message seemed to be for Arkansans to flatten the curve. But as we reopen, is the message to adapt with the curve as numbers are increasing with the cases and hospitalizations?
Governor Hutchinson [34:48]:
Well, you’re right. The first message was to flatten the curve. And whenever — the reason we wanted to flatten the curve was to make sure that we had adequate hospital space and that we had adequate PPE and to give us time to accumulate those resources. And so, we worked hard at that and it did buy us the time. As you can see, we have been able to develop our supply chain, for testing particularly. That was weak. Whenever we were talking about flattening the chain. Now, we’ve got that capacity as well as contact tracing. Now, that doesn’t mean that we stop trying to flatten that curve. But that was the early motivation on that. And we have that infrastructure in place. And now we have, again, those two messages. And the most important right now is make sure, as you go out, that you protect yourself and you protect others and follow the guidelines.
What is our capacity now, regarding ICU and hospital beds dedicated to COVID? I think I read somewhere that we’re 80% occupied?
Governor Hutchinson [36:06]:
No. That is not true statewide. If you look at specific hospitals, it’s a different level of percent. But statewide, there’s not anywhere close to that. There’s a sufficient capacity.
Same reporter [36:19]:
Northwest is where the pressure is. What are we thinking up there? What’s the capacity up there?
Governor Hutchinson [36:24]:
I’ve talked to them and certainly it’s where they want to keep an eye out on that, and the hospital workers are working so hard. We’re keeping an eye on the number. Right now, they have the space, they have the capacity. And I’ve talked to Dr. Patterson. If there’s any additional need for a surge, we’ll make sure that they have the resources they need in both those areas. Because we have that capacity statewide.
Cases are going up. You’re confident that’s gonna happen next week. How much farther are they gonna go up and how worried are you that they will start to match some of those ominous models that have come out in the last couple of weeks?
Governor Hutchinson [39:02]:
Well, when I say they go up, I mean we had 400 today and that’s down. And so you look over the course of — if you have 400 a day over five days that’s — what is that, 2,000 cases? That’s a significant growth whenever you start looking at it in those terms. I hope that we beat that. But what you’ve got to watch is the hospitalizations. And whenever you look at those scenarios. our trend line is — what you have to watch is it from a regional standpoint, as has been pointed out.
So, I am I am advising this — one, for everybody to understand where we are and what people are saying the trend line is. Secondly, what are we going to do about it? And the response is not passing a mandate that everybody is going to somehow be penalized and turned into law enforcement if they don’t wear a mask. They need to wear a mask. But we’re asking for individual social responsibility and to do the right thing. That’s what Arkansas is about.
And then secondly, it is about making sure that we cannot have so many other social problems by shutting things down. We want to be able to continue to do business.
Those are the two messages. But I continue to drive how serious this is and how we need to take the steps that we can individually take.