Governor Beshear issued a mask mandate in July which has done exactly zero to “slow the spread”. Positive test results abound (you’ll see a post on the test debacle asap).

Even though that didn’t work, Beshear is now working on a regulation which will have the same effect as law with fines for not wearing a mask. We intend to fight that.

This is the proposed regulation: https://apps.legislature.ky.gov/law/kar/902/002/210E.pdf

There is a public meeting on October 26, 2020 and several of us have signed up to speak. There is also a comment period going on now. Below are the topics that need to be addressed. You are welcome to pick any topic(s) and voice your opinion to:

  • Donna Little, Deputy Executive Director, Office of Legislative and Regulatory Affairs
  • MAIL 275 East Main Street 5 W-A, Frankfort, Kentucky 40621
  • FAX 502-564-7091
  • EMAIL CHFSregs@ky.gov

Topics to Address Re. KY’s Proposed “STATE OF EMERGENCY” Mask Regulation

Two points to bear in mind: a mask is a medical intervention, and taking someone’s temperature in order to make a diagnosis is a medical exam.

#1 Do masks work to stop a virus?

There is overwhelming proof that masks could not possibly work to stop a virus due to the size of the virus (tiny) and a mask’s pore size (relatively huge). There is also overwhelming evidence that masks are dangerous to the health of the wearer (even acknowledged the WHO, see #8).

Shouldn’t there be an examination of the evidence to determine the truth of these two points before a government can enforce a medical intervention on EVERYONE?

#2 Requiring a customer to wear a mask

If a business requires that customers wear one, the business owners must be assuming that the customer is a “direct threat”.

The term “direct threat” has a legal ADA definition. It means “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”

Under ADA, to determine whether an individual poses a direct threat the following must occur:

“(c) In determining whether an individual poses a direct threat to the health or safety of others, a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk.” [law.cornell.edu/cfr/text/28/35.139]

In order for a business to make an individualized assessment, the business must have a qualified professional (preferably someone with medical credentials) available to examine the customer to see if a) s/he is healthy enough to wear a mask and, b) to determine if the customer is a “direct threat” (see below for details on “direct threat”).

Questions re. persons conducting individualized assessments:

  • What would be included in the training for an individualized assessment?
  • What would give the authority to conduct an individualized assessment?
  • What would be included in the training?
  • What guidance policies are in place?
  • Would this assessment be done in private?
  • Would HIPPA laws be in play?

#3 Requiring employees to wear a mask

Same is true if a business requires its employees to wear a mask. In fact, OSHA requires that employees be individually fitted plus their health status and weather conditions must be taken into account before donning a mask. [Clearly, store owners and employees are unaware of this.]

#4 Practicing medicine without a license

Because a mask is a medical intervention, are employees who offer/require masks practicing medicine without a license?

#5 Clear & present danger

Requiring that everyone where a mask means there must be an imminent clear and present danger — direct threat — to everyone around us. If this is true, then EVERYONE must be required to follow WHO’s guidelines:

  • Customers must wear a CLEAN FITTED mask OVER THEIR NOSE, MOUTH AND CHIN
  • Customers must never touch the front of the mask. If they or their children touch the mask, they must be required to DISINFECT their hands immediately.
  • Masks must be changed if damp or visibly soiled.
  • Masks MUST be stored between uses in a plastic bag.
  • Customers caught with their mask under their noses must be removed from the store. No exceptions.
  • Customers must not be permitted entry if they are seen pulling a mask out of their purse or pocket without a plastic bag.
  • Customers wearing a mask into the store must have their mask examined to see if it is clean. Or require everyone to don a new mask provided by the store upon entering the store.

Why are children under a certain age exempt? Is there scientific evidence to back that up? If everyone has to wear a mask because this virus is so dangerous, then EVERYONE has to wear a mask.

Store cameras must be constantly monitored to keep everyone safe. Should a shopper be caught touching their mask and not immediately disinfect, a buzzer needs to go off to alert the other shoppers that there is currently a clear and present direct threat to their health.

Businesses will need to provide hand disinfecting stations throughout the store.

#6 Touching packages

People may not touch any food or packages except for the one they are going to buy. If they touch it, they bought it. This includes anything their kids touch.

#7 Qualified masks

Masks that comes from a box warning that it “will not provide any protection against coronavirus” are no longer to be used as protection against coronavirus.

Which masks are proven to stop the virus?

#8 Social distancing as reasonable accommodation

Since social distancing works, then mask-free shoppers must promise to a) be super aware of social distancing from other shoppers and b) not hang out near anyone for over 14 minutes (less than 15 minutes is considered safe per the CDC, see below).

https://www.cdc.gov/coronavirus/2019-ncov/php/public-health-recommendations.html

Data to inform the definition of close contact are limited. Factors to consider when defining close contact include proximity, the duration of exposure (e.g., longer exposure time likely increases exposure risk), and whether the exposure was to a person with symptoms (e.g., coughing likely increases exposure risk). While research indicates masks may help those who are infected from spreading the infection, there is less information regarding whether masks offer any protection for a contact exposed to a symptomatic or asymptomatic patient. Therefore, the determination of close contact should be made irrespective of whether the person with COVID-19 or the contact was wearing a mask. Because the general public has not received training on proper selection and use of respiratory PPE, it cannot be certain whether respiratory PPE worn during contact with an individual with COVID-19 infection protected them from exposure. Therefore, as a conservative approach, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE, which is recommended for health care personnel and other trained users, or a mask recommended for the general public.

Data are insufficient to precisely define the duration of time that constitutes a prolonged exposure. Recommendations vary on the length of time of exposure, but 15 minutes of close exposure can be used as an operational definition. Brief interactions are less likely to result in transmission; however, symptoms and the type of interaction (e.g., did the infected person cough directly into the face of the exposed individual) remain important.

QUESTION: I keep hearing 6′ as the social distance to be kept but the WHO recommends 1 meter which is just over 3′. Is there any scientific evidence supporting either number?

#9 Insurance coverage

By mandating a medical intervention, if a citizen is harmed while wearing a mask, does the state have medical malpractice insurance to cover itself if it were sued for medical malpractice?

If a business requires a mask, does the business carry insurance sufficient to cover a customer should s/he faint or become ill as the result of wearing a mask?

#10 Mask disposal

Every business must have multiple biohazard waste containers to properly disposed of contaminated masks so that the virus is not spread by or to employees disposing of them.

#11 ADA “full & equal” requirement

If a customer is not able to safely wear a mask and is forced to wait on the sidewalk while someone else shops for him/her, is this equivalent to full & equal access?

How many times has someone gone into a store and found something they needed in the clearance aisle or found something being stocked which wasn’t on the website for you to order via delivery or curbside? If you aren’t offered the same access to those types of items, are you getting full and equal access? What about the selection of meat products? Who goes to the store, grabs the first New York strip steak they see without looking at the others? Does “full and equal” under ADA actually mean FULL and EQUAL? Or does it mean what others determine full and equal means for you?

#12 Experts opposed to masks

Compiling a list of experts — epidemiologists, researchers, virologists, investigators, doctors, nurses, etc. — who are opposed to masks.

“Direct threat”

The term “direct threat” has a legal ADA definition. It means “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”

The pandemic is specifically addressed as follows: “Whether pandemic influenza rises to the level of a direct threat depends on the severity of the illness. If the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination.” [eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act]

In March, the pandemic was determined to be a direct threat. This has not been adjusted even though deaths peaked in April and we are no longer in pandemic stage, we’ve been downgraded to outbreak. [cdc.gov/outbreaks/index.html]

Plus the death rate is currently in line with seasonal flu. [Dr. Pam Popper with current stats from gov websites: youtu.be/pz7MkiPVxAM?t=113]

The virus is either incredibly dangerous or it’s not. How far are businesses willing to go for a virus with a 99.8% recovery rate?

If you have other points to make, please comment below! We will incorporate. Thank you.


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