Major Points from Governor Kemp’s 05.28.21.01 and 05.28.21.02 Executive Orders

On May 28, 2021, Governor Kemp issued Executive Order 05.28.21.01 which extends Georgia's Public Health State of Emergency through June 29, 2021. On May 28, 2021 the Governor also issued Executive Order 05.28.21.02 hereinafter (“the Order”) which will be effective May 31, 2021, through June 15, 2021 and which lays out provisions to govern the ongoing Public Health State of Emergency.

(New provisions are bolded and italicized).

Summary of Key Points

General highlights: The Order –

Effective May 31, 2021, through June 15, 2021, this order eliminates rules for restaurants, bars, conventions, childcare facilities, live performance venues, and other organizations. Previous executive orders eliminated regulations for camps and sporting events.

Some limited guidelines remain for long-term care facilities, schools, and school districts. Under the new executive order, schools and school districts cannot utilize renewed public health state of emergency authority to require workers or students to wear a face covering while on school campuses.

Definitions (pp. 7-8)

Definitions of terms used in the Order such as “Local Option Face Covering Requirement”, “Nursing Homes” and “Organization” are to be found here. Many previously defined terms have been removed in this Order.

Provisions Specific to Governments (pp. 15-20) and Enforcement (p.20)

Although it is vital that Local Government entities acquaint themselves with the complete substance of the order, some of the highlights for local governments are as follows:

  1. Pursuant to the Order no Organization shall be mandated to close for failure to comply with the provisions of the Order.
  2. Municipalities must continue to abide by their obligations to conduct public auctions through the statutory levy processes and otherwise enforce writs of fieri facias.
  3. Other than orders issued pursuant to the authority of Code Section 38-3-60 et seq. (Judicial Emergencies), local ordinances or resolutions requiring people to wear face coverings, masks, face shields, or any other Personal Protective Equipment while in places of public accommodation or on public property are suspended to the extent that they are more restrictive than this Executive Order unless specifically allowed in the Order. Local Option Face Covering Requirements are permitted as provided for in the Order.
  4. The Order includes language providing that non-citizen legal residents can apply for temporary 120-day driver’s permits or identification cards “if they have a valid Georgia license or ID that expired on March 14, 2020 or later”. It can also be requested by those who “have a pending application for an extension of legal residence” with the federal government. They can also request additional 120-day permits if they have already been granted one previously.
  5. Applications for renewals of such weapons carry licenses and renewal licenses will be considered to be for a renewal license if the holder of the weapons carry license or renewal license applies within 120 days after the expiration date on the license.
  6. For the purposes of Code Section 48-5-311(e)(6A), "in-person" appearances before county boards of equalization may occur via remote communications. This provision shall be implemented consistent with Ga. Comp. R. & Regs. r. 560-11-12-.02, which requires hearings before county boards of equalization to "only be as formal as is necessary to preserve order and be compatible with the principles of justice." This provision does not abrogate the requirement that county boards of equalization comply with the Georgia Open Meetings Act. Further, decisions of county boards of equalization may be transmitted electronically if all parties consent at the time of the hearing.
  7. Can enact ordinances for emergency management purposes and to supplement the carrying out of the Order – but cannot be more or less restrictive unless specifically provided for in the Order. “More or less restrictive” is not defined in the Order.
  8. The Order provides “[t]hat any purported requirement under the laws of this state requiring original signatures and raised corporate seals related to construction surety bonds required under Code Sections 13-10-40- 65, 32-2-70, 36-91-1, 36-91-2, 36-91-50 and 36-91-70-93 and commercial surety bonds required or permitted under numerous other statutes are suspended for the limited purpose of providing that public procurement officers shall accept electronic signatures and electronic corporate seals as provided by the provisions of Code Sections 10-12-2 et seq. and 33-24-14 and any construction surety bond or commercial surety bond may be executed electronically if all the following requirements are met:
    1. The document is notarized pursuant to the requirements of Executive Order 04.09.20.01; and
    2. If requested by the procurement officer, the original shall be provided within seven (7) business days.

Local Option Face Covering Requirement (pp. 16-17)

In the 08.15.20.01 order the Governor issued specific provisions concerning local face covering requirements. Those provisions were renewed in the subsequent orders and are provided for in the Order. Local governments may impose such Face Covering Requirements as follows:

  1. Local governments which had met the Threshold requirement (as defined in the Order as being in a county having a prevalence of 100 cases per 100,000 people over the past 14 days) are allowed to impose a Local Option Face Covering Requirement but are not required to do so. (Case numbers can change daily so we advise cities monitor this closely to ensure they remain in compliance.)
  2. If a local government decides to impose a face covering requirement it has to comply with the following:
    1. The requirement cannot be applied to people who are eating or drinking, who have difficulty putting on or taking off a face covering without assistance, those who have a religious objection, and those who have a medical reason for not wearing a face covering.
    2. Penalties (criminal or otherwise) cannot be imposed on any private business, establishment, corporation, non-profit corporation, or organization.
    3. The maximum penalty cannot be larger than $50 per offense.
    4. Enforcement can only be against individuals, people who operate businesses and the businesses themselves cannot be held liable for failures of their customers to comply.
    5. The requirement cannot be enforced at any Polling Place.
    6. The requirement cannot be enforced against individuals on residential property.
    7. The requirement can be enforced against people on private property when the owner or occupant of the private party consents to enforcement. Such businesses, etc. can be required to post a reasonable public notice stating whether they consent to enforcement or does not consent to enforcement on its property.
  3. Local governments imposing a face covering requirement must warn noncompliant individuals about the health risks of not wearing a face covering prior to issuing a citation and shall make good faith efforts to distribute free masks to those who cannot afford a mask. If an individual is found in violation and cannot afford a mask, the local government must provide them a mask at the local government’s expense.
  4. Local governments have the authority to control the terms of entry onto property owned or leased by the local government regardless of whether the Threshold Requirement is met or not.

Specific Service Providers

Healthcare Providers (pp. 8 - 11)

Long-Term Care Facilities must comply with the Department of Public Health’s Long-Term Care Facility Administrative Order (this provision will be strictly enforced) and must implement additional measures and protocols to prevent the spread of Covid-19 in line with the Centers for Disease Control and Prevention, and the Department of Public Health’s, guidance.

This Section also allows the National Guard to assist in the enforcement of such provisions.

Education and Children (pp.12 - 14)

Order removes the authority for local school districts to rely on the Public Health State of Emergency as a basis for requiring students or Workers to wear face coverings on school campuses.

Governments (pp. 15 – 20) – See above

Enforcement (pp.20 - 22)

Violation of the Order is a misdemeanor under O.C.G.A. § 38-3-7.
No Judicial Order is affected by the Executive Order.