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COVID-19 Resource Center

COVID-19 Question of the Day

Q

Are state-legal marijuana operations eligible businesses to qualify for a loan under the Paycheck Protection Program?

A

No. The SBA specifically provides that the following businesses are ineligible: (a) “Direct Marijuana Business” – a business that grows, produces, processes, distributes or sells marijuana or marijuana products, edibles or derivatives, regardless of the amount of such activity. This applies to personal use and medical use even if the business is legal under local or state law where the applicant business is or will be located; and (b) “Indirect Marijuana Business” – a business that derived any of its gross revenue for the previous year (i.e., if a startup projects to derive any of its gross revenue for the next year) from sales to Direct Marijuana Businesses of products or services that could reasonably be determined to support the use, growth, enhancement or other development of marijuana. Examples include businesses that provide testing services, sell grow lights or hydroponic equipment to one or more Direct Marijuana Businesses. In addition, businesses that sell smoking devices, pipes, bongs, inhalants or other products that may be used in connection with marijuana are ineligible if the products are primarily intended or designed for such use or if the business markets the products for such use. For more information, contact Matt Johnson.
   

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Warner is helping our clients navigate the response to the COVID-19 virus and the various state and federal changes in response to the virus. Warner assembled an interdisciplinary team of attorneys that are dedicated to remaining on top of the many changes prompted by this novel coronavirus.  We will continue to provide updates and developments to our clients as we all face the challenges and changes from COVID-19.
 
Warner has prepared the following COVID-19 resource center to make it easier for our clients to access important updates in a single location. Here you’ll find links to our eAlerts providing information and guidance on a range of issues such as labor, contracts, insurance, intellectual property and litigation to name a few. You’ll also find our summary of Governor Whitmer’s Executive Order, as well as a letter from Warner’s Managing Partner outlining the measures the firm has taken to continue serving clients while complying with the latest government and health guidelines.
 
To have future updates delivered directly to your inbox, please subscribe by sending your email address to covid@wnj.com.

Click here for information about Warner’s upcoming COVID-19 Webinars


Summary of COVID-19-related eAlerts and Webinars:

General

3-29-20 Warner Summarizes the CARES Act
On March 27, 2020, President Trump signed the Coronavirus Aid, Relief and Economic Security Act (CARES Act) into law. The CARES Act provides emergency assistance to individuals, families and businesses affected by COVID-19. The CARES Act is divided into two divisions. Division A includes programs to benefit individuals, companies and the health care system affected by COVID-19. Division B describes the supplemental appropriations to help the government respond to COVID-19. Read the full article here.

Banking/Finance

4-3-20 Commercial Finance: SBA Issues Interim Final Rule Related to PPP Loans
On Thursday April 2, 2020, the Small Business Administration (SBA) issued an interim final rule describing how it interprets the Paycheck Protection Program (PPP) and other related SBA loan provisions of the CARES Act. The interim rule clarified some, but not all, of the open issues related to the administration of the PPP loan program. Read the full article here.

4-2-20 Bankruptcy: CARES Act Temporarily Modifies Provisions of the Bankruptcy Code

The Coronavirus Aid, Relief and Economic Security Act (CARES Act), which was signed into law on March 27, 2020, temporarily modifies the Bankruptcy Code to provide: (i) a temporary expansion of the debt limitations under the new Subchapter V small business Chapter 11 provisions of the Bankruptcy Code; and (ii) filing and plan payment relief to Chapter 7 and 13 debtors. These provisions all have a sunset provision which is one year from the enactment of the CARES Act. Read the full article here.

4-1-20 Financial Services: Are Loans Under the Paycheck Protection Program Guaranteed by the SBA?
The Paycheck Protection Program (PPP) of the CARES Act (the “Act”) states that the Small Business Administration’s (SBA) participation in PPP loans by the SBA is 100%. The Act clearly states that the SBA is guaranteeing payment of the applicable loan. This 100% guarantee continues to apply after application of any loan forgiveness. The Act states, “the remaining balance shall continue to be guaranteed by the [SBA] under this subsection.” Read the full article here.

3-27-20 Commercial Finance: Federal and State Financial Relief for Small Businesses
On Wednesday, March 25, 2020 and on March 27, 2020, the U.S. Senate and the House of Representatives passed the Coronavirus Aid, Relief and Economic Security (CARES) Act and the President just signed it into law. The CARES Act creates several new Federal Small Business Administration (SBA) loan programs or amendments to existing programs that could assist businesses that have been impacted by the COVID-19 pandemic with their day-to-day operating expenses. Read the full article here.

3-25-20 Financial Services: Talk to Your Lender NOW if You Anticipate Problems Making Loan Payments due to COVID-19 Business Disruptions
A recent statement by federal and state regulators of financial institutions paves the way for businesses and their employees to seek temporary debt relief during the nation’s COVID-19 response. Federal and state regulators issued an Interagency Statement on Loan Modifications and Reporting for Financial Institutions Working with Customers Affected by the Coronavirus (Interagency Statement). Read the full article here.

Business Operations

3-25-20 Medical Device and Manufacturing: Protections Against Liability for Individuals and Entities Providing COVID-19 Countermeasures
Some suppliers are being asked to contribute and shift their production efforts to help combat the COVID-19 pandemic, and they are wondering what their potential liability could be if they decide to undertake efforts to manufacture products that are not within their typical practice. The short answer is that there is broad immunity under federal law (that likely preempts state law and bars any state law claims) and a rebuttable presumption of immunity under Michigan law. Read the full article here.

3-24-20 Aerospace, Defense and Government Contracting: White House Mobilizing American Manufacturing in Response to COVID-19
Two recent presidential actions have paved the way for private industry to aid the nation’s COVID-19 response. The president has declared a national emergency under the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 to enable the federal government to access a $50 billion relief fund. He also invoked the Defense Protection Act (DPA) to encourage private industry to increase the production and distribution of emergency medical supplies. Read the full article here.

3-23-20 Government Affairs: Summary of Stay Home, Stay Safe Executive Order
On March 23, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 2020-21 (the “Order”) in response to the COVID-19 pandemic. The Order demands residents remain at home “to the maximum extent feasible” and prohibits in-person work that “is not necessary to sustain or protect life.” The Order takes effect on March 24, 2020 at 12:01 a.m. and continues through April 13, 2020 at 11:59 p.m. Read the full summary here.

3-18-20 Health Law: Broad Guidance Issued for Telehealth Remote Communications During COVID-19 Crisis
The Office for Civil Rights (OCR) at the Department of Health and Human Services (HHS) issued broad guidance and announced that it will exercise enforcement discretion for telehealth remote communications during the COVID-19 public-health emergency. Read the full article here.
 

Environmental

4-1-20 Resources, Energy and Environment: EGLE (Sort of) Follows U.S. EPA’s Lead by Excusing Some Environmental Obligations During the COVID‑19 Pandemic
Last week, the United States Environmental Protection Agency (EPA) released a potentially broad policy restraining federal civil enforcement for various environmental obligations. Specifically, the March 26, 2020 Bodine Memo states that the EPA will conditionally exercise “enforcement discretion” for noncompliance with environmental obligations caused by the COVID-19 pandemic. Read the full article here.
 

Human Resources

4-6-20 Labor and Employment: Governor Whitmer Prohibits Retaliation Against Employees Who Stay Home Because They (or Someone They Have Close Contact With) Have COVID-19 or Its Symptoms
On Friday, April 3, 2020, Governor Whitmer signed Executive Order 2020-36, aimed at “protecting workers that stay home, stay safe when they or their close contacts are sick.” Real the full article here.

4-2-20 Labor and Employment: U.S. Department of Labor Announces New Paid Sick Leave and Expanded Family and Medical Leave Regulations
Yesterday, the Wage and Hour Division of the U.S. Department of Labor (DOL) issued a temporary rule regarding the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family Medical Leave Expansion Act (EFMLEA) of the Families First Coronavirus Response Act (FFCRA). The regulations created under the rule reaffirm prior DOL guidance and provide clarity regarding a number of outstanding questions. Read the full article here.

4-1-20 Labor and Employment: IRS Issues Guidance on Employee Documentation Necessary for Employers to Maintain and Substantiate Tax Credit Eligibility Under FFCRA
In its most recent guidance on the Families First Coronavirus Response Act (FFCRA), the Department of Labor (DOL) instructed employees to provide their employers with documentation in support of their leave “as specified in applicable IRS forms, instructions, and information.” Last night, the IRS released guidance on what information and documentation an employer may request from an employee to substantiate the employer’s eligibility for tax credits for qualified leave wages under the Emergency Family Medical Leave Expansion Act and Emergency Paid Sick Leave Act provisions of the FFCRA. Read full article here.

3-31-20 Labor and Employment: Webinar: Employment Law Update on Families First Coronavirus Response Act (FFCRA) and New Coronavirus Aid, Relief and Economic Security (CARES) Act
Conditions have been rapidly changing since the FFCRA was signed into law, including new guidance from the Department of Labor. Many questions have arisen as employers look to comply with its provisions when it goes into effect on April 1, 2020. Additionally, Congress has now passed a new $2 trillion stimulus package called the CARES Act, which provides additional implications for employers and small businesses. Click here to view a recording of the webinar.

3-31-20 Employee Benefits: Act Now to Determine Treatment of COVID-19 Sick and Leave Pay Under Your Retirement Plan
Starting April 1, 2020, certain employees are entitled to receive sick pay and leave pay related to COVID-19 under the newly enacted Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. It is critical that employers quickly determine how to properly treat these payments for purposes of their retirement plans. These payments may affect both defined contribution plans and defined benefit plans. Read the full article here.

3-30-20 Employee Benefits: CARES Act Provisions for Retirement Plans
Congress has passed significant legislation in response to the COVID-19 emergency. The Families First Coronavirus Response Act (FFCRA) was enacted on March 18, 2020, and on March 27, 2020, the President signed the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”). Read the full article here.

3-30-20 Labor and Employment: DOL Issues More Q&As on FMLA and Paid Sick Leave Provisions of the Families First Coronavirus Response Act
As previously discussed in Warner’s Q&A for Paid Sick Leave eAlert (3.25.20), the Wage and Hour Division of the U.S. Department of Labor (DOL) continues to issue guidance on the Emergency Family Medical Leave Expansion Act and Paid Sick Leave Act provisions of the Families First Coronavirus Response Act (FFCRA), primarily through online questions and answers (Q&As). Read the full article here.

3-27-20 Employee Benefits: CARES Act Provisions for Health & Welfare Plans: Implications for Employers
Congress has passed some significant legislation in response to the COVID-19 emergency. The Families First Coronavirus Response Act (FFCRA) was enacted on March 18, 2020, and today, the President signed the enactment of the Coronavirus Aid, Relief and Economic Security (CARES) Act. Read the full article here.

3-27-20 Immigration: Mutual Aid – Sharing H-1B Health Care Providers in Time of Crisis
The introduction of the COVID-19 virus into American society has severely stretched the resources of our health care facilities and providers. By the very nature of the epidemic, physicians and allied health care providers are not proportionately distributed among areas of greater and lesser need. Understandably, facilities have discussed sharing providers based on need as the crisis unfolds. Many of the providers who could help are H-1B foreign workers within the U.S. health care system. Read the full article here.

3-27-20 Labor and Employment: DOL Issues Additional Guidance on Implementation of FMLA and Paid Sick Leave Provisions of the Families First Coronavirus Response Act
Earlier this week, we reported that the Wage and Hour Division of the U.S. Department of Labor (DOL) issued initial guidance on the Emergency Family Medical Leave Expansion Act and Paid Sick Leave Act provisions of the Families First Coronavirus Response Act (FFCRA). This included two Fact Sheets and a Question and Answer (Q&A) document. While helpful, that initial guidance left many open issues. Read the full article here.

3-27-20 Labor and Employment: Practical Tips to Make Your Workplace Safe for “Critical Infrastructure” and “Basic Minimum Operations” Workers
Many Michigan businesses have suspended operations under Governor Whitmer’s Executive Order 2020-21 Stay Home Stay Safe. But many have also continued operations as “critical infrastructure.” Still more have asked “basic minimum operations” employees to report to work, as needed, to maintain the value of inventory and equipment, ensure security or perform other permitted activities. In those instances, employers should consider and implement measures to ensure that they provide a safe work environment to employees. Read the full article here.

3-26-20 White Collar Criminal Defense: Stay Home, Stay Safe: How to Protect Your Employees and Your Business When Law Enforcement is Knocking on Your Door
Governor Whitmer’s “Stay Home, Stay Safe” Executive Order (EO 2020-21) directs all Michigan businesses and entities to temporarily suspend in-person operations that are not necessary to sustain or protect life. In recent days, state and local law enforcement officials have begun to enforce the order against both individuals and businesses, by showing up at businesses and asking questions and by stopping employees and others in transit and inquiring about the purpose or legitimacy of the person’s travel. Real the full article here.

3-26-20 Immigration: Should I Stay or Should I Go? COVID-19 and U.S. – Canada Border Restrictions
On Saturday, March 21, the border between the U.S. and Canada was closed to non-essential travel for the next 30 days. The closure came through a joint initiative between the U.S. Department of Homeland Security and the Canada Border Services Agency. Although the U.S. and Canada did not precisely define “essential travel,” a joint statement released by both governments provided some indication of allowable cross border traffic. Read the full article here.

3-25-20 Labor and Employment: DOL Issues Fact Sheets and Q&A for Paid Sick Leave and Expanded FMLA Leave
In a news release issued March 24, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) published its first guidance on the Families First Coronavirus Response Act (FFCRA). The WHD published a Fact Sheet for Employees, a Fact Sheet for Employers and a Questions and Answers (Q&A) document. The Fact Sheets appear to combine both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act and may need to be corrected. We will concentrate on the Q&A document as it answers some of the questions many of you have regarding the two new statutes. Read the full article here.

3-25-20 Labor and Employment: DOL Issues Posters under the Family First Coronavirus Response Act
In addition to its guidance issued yesterday, the Department of Labor today issued posters under the Family First Coronavirus Response Act. Covered employers are required to post this poster no later than April 1, 2020, the effective date of the FFCRA. You can find the poster here.

3-19-20 Employee Benefits: Dependent Care FSAs and Day Care Closures Due to COVID-19
“My child’s day care closed – can I stop my dependent care FSA contributions?” This is probably a common question your employees are asking, as day cares and other child care providers are closing or stopping child care due to the COVID-19 pandemic. Depending on what your plan document says, the answer may very well be “yes.” Read the full article here.

3-19-20 Labor and Employment: HR 6201 – Updated COVID-19 Leave Law Signed by President
Late on March 18, President Trump signed into law the Families First Coronavirus Response Act (HR 6201), which is aimed at containing the widening effects of COVID-19. The Families First Act creates several significant new leave and sick pay obligations for covered employers. Those obligations will go into effect on April 2, 2020 and expire December 31, 2020. Read the full article here.

3-16-20 Employee Benefits: COVID-19: Important Employee Benefit Considerations
As your company responds to the coronavirus pandemic, here are some issues to take into account with respect to your employee benefit programs. Keep in mind that things are changing rapidly, and we’ll continue to update you about significant legal developments. Read the full Q&A here.

3-16-20 Labor and Employment: HR 6201 – The Impact to Employers and Employees
The House of Representatives passed a bill aimed at containing the widening effects of COVID-19 (HR 6201). The President has already indicated that he will sign it. If passed by the Senate, HR 6201 would create several significant new leave and pay obligations for covered employers. Read the full article here.

3-12-20 Labor and Employment: Federal Agencies Issue COVID-19 Guidance and Resources to Assist Employers and Employees
As the COVID-19 pandemic spreads – with cases now reported in some 41 states including Michigan – employers continue to have questions about how they should protect their workers while still operating their businesses and serving their customers. Read the full article here.

3-5-20 Labor and Employment: Responding to the Threat of COVID-19 in Your Workforce
The Center for Disease Control recently published guidance for employers to plan for and respond to the threat of COVID-19 (Coronavirus) in their workforce. Read the full article here.

Insurance

3-13-20 Insurance: Coronavirus: Insurance Coverage for Business-Related Losses?
COVID-19, otherwise known as the coronavirus, is becoming a widespread public health crisis around the globe. Many businesses have already felt its presence either directly or indirectly through the outbreaks in Asia and Italy, with many more preparing for future business disruptions. Read the full article here.

Tax

4-1-20 Tax Law: Webinar: New Coronavirus Aid, Relief and Economic Security Act (“CARES Act")
The CARES Act provides emergency assistance to individuals, families and businesses affected by the COVID-19 pandemic. We will provide a summary of the CARES Act as it relates to: new federal Small Business Administration (“SBA”) loans that could assist your business with its day-to-day operations; the potential tax relief available to your corporation; and health care provisions related to hospitals, health systems and individuals expanded rights. Click here to view a recording of the webinar.

3-31-20 Tax Law: Michigan Tax Update: COVID-19 Delay for Payment and Filing
As anticipated, Michigan Governor Gretchen Whitmer recently issued Executive Order 2020-26 (the “Order”) in response to Federal Notice 2020-18 to align federal and state tax return and payment due dates. By issuing the Order, the Governor is providing relief from tax deadlines to Michigan taxpayers who have been adversely affected by the ongoing national emergency related to COVID-19. Read the full article here.

3-27-20 Tax Law: CARES Act Includes Many Tax Relief Provisions for 2020
The Coronavirus Aid, Relief and Economic Security (CARES) Act was passed by the Senate on March 25, 2020, and by the House of Representatives on March 27, 2020. At the time of this writing, President Trump announced that he has signed CARES into law. CARES provides a variety of provisions intended to grant economic relief. Many of the provisions provide tax relief to individuals and corporations. The following is based on the Senate version sent to the House. Read the full article here.

3-23-20 Tax Law: Federal Tax Update: COVID-19 Delay for Payment and Filing
The U.S. Department of Treasury released notice 2020-18 in response to President Trump’s pandemic declaration on March 13, 2020. This notice states that COVID-19 warranted an emergency and the Treasury is providing relief from tax deadlines to Americans who have been adversely affected by the national emergency. The usual due date of April 15, 2020 for filing federal income tax returns and making federal income tax payments is now automatically postposed to July 15, 2020. Read the full article here.

3-20-20 Tax Law: MI Department of Treasury Waives Penalty and Interest for Monthly Sales, Use and Withholding Tax Returns Due March 20, 2020
The Michigan Department of Treasury (“Department”) has announced that it will waive penalty and interest for 30 days for monthly sales, use and withholding tax returns due March 20, 2020 due to compliance difficulties related to the coronavirus (COVID-19) outbreak. Any return or payment due on March 20, 2020 may be submitted to the Department without penalty or interest through April 20, 2020. Read the full article here.

3-16-20 Tax Law: HR 6201 to Create Tax Credits to Help Employers Amid COVID-19 Crisis
The House of Representatives passed a bill with tax-credit provisions aimed at containing the widening economic effects of COVID-19 (HR 6201) and lessening the potential burden on employees and employers. Read the full article here for a full overview of the tax credits and how they could impact your business.

Technology/IP

4-2-20 Patents, Trademarks and Copyrights: The CARES Act Cares for IP Owners Too
The CARES Act did not leave out patent, trademark and copyright owners. Instead, the CARES Act grants the U.S. Patent & Trademark Office (USPTO) and the Register of Copyrights temporary authority to modify filing deadlines, which is good news for intellectual property holders. Read the full articles here.

3-20-20 Technology and Intellectual Property: The IP Power Pause: Finding Opportunities Amidst the Chaos
International work disruptions are not the norm and, when they happen, they can feel paralyzing. Daily work and life routines drift to a halt. Streets empty, transportation trickles and our relationships retreat. It’s like someone hit “pause” on our personal and professional practices. But, professional “pauses,” if managed strategically, can bolster your business arsenal. We call this a “power pause.” A power pause is particularly advantageous in intellectual property. Read the full article here.

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