The Internal Revenue Service (“IRS”) has issued two important notices allowing employer-plan sponsors to amend their §125 cafeteria plans to provide employees with increased flexibility for elected benefits and account balances.

Michigan Governor Gretchen Whitmer signed executive orders 2020-91 and 2020-92, revising the state's Stay Home, Stay Safe Order and advancing the process to resume in-person work and activities that were temporarily suspended under the previous orders. EO 2020-91 requires a number of safeguards that employers must follow for all businesses and operations that are permitted to require their employees to leave their homes for work.

As Michigan school districts navigate their 2020-2021 budgets, with looming cuts to school aid and other consequences of the COVID-19 pandemic, we want to remind you of the available operating cash-flow borrowing options. Although the cash-flow borrowing option is a short-term tool it can be used in conjunction with other measures to help school districts weather the coming financial storm. 

The COVID-19 pandemic has wreaked havoc on brick and mortar businesses. Consumers, confined to their homes, have flocked to online markets, where products offered by patent owners often compete with infringing products from across the globe. Fighting these infringers has never been easy, but the problem has been exacerbated by the pandemic, which has caused significant delays at the courthouse.

Introducing the IP Litigation Quarterly Update, a quarterly newsletter summarizing noteworthy and interesting opinions related to intellectual property law. In this first edition covering the first quarter of 2020, the Supreme Court decided whether Congress had the authority to revoke state immunity from copyright infringement and declined to revisit what constitutes patentable subject matter under 35 U.S.C. § 101 and its Alice decision. The Federal Circuit discussed permissible considerations in obviousness determinations, took an in-depth look at inequitable conduct during patent prosecution, debated deference to opinions of the Precedential Opinion Panel at the Patent Trial and Appeal Board, and more.

The United States Department of Education’s Office for Civil Rights (OCR) released a final rule implementing Title IX of the Education Amendments of 1972 (“Title IX”). The final rule was released on May 6 and takes effect August 14, 2020.

On May 7, 2020, Michigan Gov. Gretchen Whitmer opened up manufacturing in Michigan as a part of an overall extension of the state's Stay Home, Stay Safe orders. With the new executive order, manufacturing will re-open on May 11, 2020, but the Stay Home, Stay Safe requirement will extend until May 28, 2020.

Choosing the right restructuring procedure depends on the situation of the company and its needs. Further actions – preparation of the restructuring plan, choosing the right restructuring procedure – will certainly require legal advice. Having many years of experience in the field of restructuring and bankruptcy proceedings, we remain at your disposal in case of any further questions.

This Alert focuses on the disclosure and regulatory guidance offered by the SEC and FINRA as it pertains to SEC-regulated investment advisers and FINRA-regulated registered persons, followed by a summary of guidance from the enforcement arms of the SEC and FINRA as it pertains to protecting investors during the uncertain market events created by the pandemic.

The Order encourages public bodies holding meetings electronically to effectuate as fully as possible the purposes of the Open Meetings Act, which include promoting government accountability and fostering openness in government to enhance responsible decision-making.

Effective May 1, 2020, identity documents found in List B which expired on or after March 1, 2020, and have not otherwise been automatically extended by the issuing authority due to COVID-19, may be treated by the employer as if the employee presented a valid receipt of an acceptable document for Form I-9 purposes. 

With federal and state governments’ contemplation of plans to reopen the economy, employers should begin considering necessary and recommended steps to bring employees back to the workplace, and legal issues raised by doing so.

Michigan Gov. Gretchen Whitmer signed an executive order making residential and commercial construction among the first sectors of the economy to reopen as the state gradually lifts its stay-at-home orders.

The purpose of the Main Street Lending Program is to support lending to small and medium-sized businesses that were in sound financial condition before the onset of the coronavirus.

The government’s guidance provides many nuances related to the extended timeframes and relaxed requirements for employee benefit plans.

Emergency rent protocols, plans to provide a “temporary pandemic payment” in the form of an additional $4.00 per hour raise for certain front-line workers, and additional interactive public information tools.

Since many authorized entities that collect personal information are governmental entities, it remains to be seen how these laws and regulations apply to unauthorized entities collecting personal information, authorized entities’ unauthorized use of the rightfully collected information, or authorized entities that exceed their authorities to engage in excessive collection of personal information.

As in-person meetings are now prohibited, the Order allows for an alternative virtual platform to comply with the legally mandated requirements of valid execution.

This E-Alert summarizes current guidance on the loan forgiveness provisions and raises some of the ambiguities and open issues that need further clarification. The SBA is expected to issue additional guidance on or before April 26, 2020.

Michigan Governor Gretchen Whitmer signed Executive Order 2020-59, extending the duration of Michigan’s stay-at-home requirements from April 30, 2020, to May 15, 2020.

Individuals can qualify for Michigan unemployment benefits if they leave work, are laid-off, or are placed on a temporary unpaid leave for reasons related to COVID-19.

Real property transactions (purchases, leases and foreclosures) need not be put on hold due to uncertainty surrounding the ability to obtain available environmental liability protections.

On April 23, 2020, Congress passed the “Paycheck Protection Program and Health Care Enhancement Act” (Act) to increase funding for paycheck protection program loans (PPP Loans), economic injury disaster loans (EIDLs) and EIDL emergency grants under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) and to provide $75 billion in funding for hospital and other eligible health care providers and $25 billion for COVID-19 testing. 

President Trump signed an executive order restricting certain categories of immigrants from entering the United States. This order is effective at 11:59 p.m. EDT on April 23, 2020, and will last for 60 days, at which point it may be modified or even continued as necessary.

The patent law provides two primary types of infringement damages: lost profits and reasonable royalties. To recover lost profits, a patent owner must prove that the infringer displaced sales that, but for the infringement, the patent owner likely would have made. 

Under the Federal Contractor Authority, government funds may be used to modify the terms and conditions of a defense contract to reimburse a defense contractor for paid leave provided to keep employees or DoD subcontractors in a “ready state.”

The support will be available to medium-sized businesses with larger financing needs, beginning with companies in Canada's energy sector, to help them maintain operations and keep their employees on the job.

The Federal Reserve, acting under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) and Section 13(3) of the Federal Reserve Act (12 USC §344), announced the creation of a new “Main Street Lending Program” that will provide credit to eligible businesses with up to 10,000 employees or up to $2.5 billion in annual revenues through the purchase of up to $600 billion in loans. 

Miller Canfield provides the resources, legal and business advice to help clients respond to the COVID-19 pandemic, and plan to recover strong.

The U.S. Small Business Administration (SBA) clarified the treatment of companies treated as partnerships for income tax purposes, and partners and sole proprietors/independent contractors for Paycheck Protection Program (PPP) loan purposes in its second interim final rule.

The extension of the deadlines will give tax exempt organizations more time to focus on their missions during this time of crisis. The IRS’ action will also give tax exempt organizations more time to collect needed information and work with accountants (if necessary) to prepare and file these forms.

The postponement of payment obligations and filing deadlines to July 15, 2020, applies to personal income tax returns, corporate income tax returns, returns of partnership income, estate and trust income tax returns, estimated taxes, estate tax returns, gift tax returns, exempt organization returns, and many other specified filing due date and payment obligations.

New DDA/TIF reporting and public informational meeting requirements pursuant to the Recodified Tax Increment Financing Act, effective January 1, 2019.

Michigan Treasury issued a notice on April 14, 2020, advising most Michigan businesses that their sales, use and withholding tax returns and payments which were due on April 20, 2020, will not be assessed interest or penalty if filed one month later, on May 20, 2020.

Taxpayers who have recently sold real property or intend to sell real property in the near future may have additional time to identify and acquire suitable replacement property to complete their Section 1031 like-kind exchanges. Similarly, taxpayers also have more time to reinvest proceeds from recently sold property into Qualified Opportunity Zone Funds.

The COVID-19 pandemic has led many companies to marshal their resources to produce products such as coronavirus test kits, pharmaceutical treatments, vaccines, ventilators, and personal protective equipment. This e-alert addresses the concern that these “good Samaritan” companies may be exposed to patent infringement liability, and discusses some unique defenses that they may ultimately be able to rely upon.

U.S. Government Financing Available to U.S. Subsidiaries of Foreign Investors (Polish version)

A business generally is eligible for a PPP loan if it, combined with its foreign and domestic affiliates, has "500 or fewer employees whose principal place of residence is in the United States." Such guidance suggests that the foreign employees of an applicant and its affiliates do not need to be included in the employee count.

Environmental compliance obligations (e.g. emission and discharge limitations, testing and sampling requirements, and monitoring and reporting obligations) continue to apply even when operations have been shuttered or severely curtailed.

As anticipated, on April 5, 2020, Michigan Gov. Gretchen Whitmer issued Executive Order 2020-38 suspending “strict compliance” with the required response periods under the Freedom of Information Act (“FOIA”).

As anticipated, on April 2, 2020, Governor Whitmer issued Executive Order 2020-35 (the “Order”) regarding the provision of K-12 education in Michigan for the remainder of the 2019-20 school year.

Michigan Governor Gretchen Whitmer signed Executive Order No. 2020-36, requiring certain individuals to stay at home even if they were otherwise allowed to leave home for work as a critical infrastructure worker, and prohibiting employers from taking adverse action against employees who stay home in compliance with the order.

The Order suspends the requirement of the Open Meetings Act that members of a public body be physically present at meetings of the public body, and the limitations of the Open Meetings Act as to when members of a public body may participate in meetings of the public body remotely. 

These new filing and payment deadlines follow in the wake of the Internal Revenue Service’s postponement of certain federal filing and payment deadlines to July 2020. 

On April 1, 2020, the Department of Labor (“DOL”) posted a temporary rule containing temporary regulations regarding the implementation of the Families First Coronavirus Response Act (“FFCRA”).

The CARES Act amended the Small Business Reorganization Act of 2019 to increase the eligibility threshold for businesses filing under new subchapter V of chapter 11 of the U.S. Bankruptcy Code from $2,725,625 of debt to $7,500,000.

The COVID-19 pandemic and resulting government actions have raised a number of questions regarding compliance with ongoing disclosure requirements.

The new guidance focuses on the extent to which the “health or safety emergency” exception permits disclosure of PII in connection with COVID-19 emergencies.  

The guidance addresses several topics concerning the paid sick leave (under the Emergency Paid Sick Leave Act) and the expanded family and medical leave (under the Emergency Family and Medical Leave Expansion Act). 

For the $10 million grant program, the MEDC has partnered with Local Economic Development Organizations in 15 regions of the state to administer the grants. Each organization will be using the same or similar application forms and processes for selection and administration.

How can cash-strapped companies quickly and effectively resolve their business disputes in the wake of this global pandemic? One promising option – if both parties will agree to it – is expedited remote arbitration.

While the Stabilization Act prohibits the forgiveness of any principal amount of a loan to a State or municipality, it ties the interest rate on such loans to “the risk [related to such debt] and the current average yield on outstanding marketable obligations of the United States of comparable maturity.” This provision could serve to calm the recent volatility in the relationship between U.S. Treasury yields and that of State and municipal debt.

The Act expands employee benefit plan opportunities through the relaxation of certain requirements (including under the Internal Revenue Code and the Employee Retirement Income Security Act (“ERISA”) for retirement plans, health plans and certain medical reimbursement accounts. Plan sponsors should carefully review plan documentation to consider implications on their benefit offerings and administration.

The update is designed to help employees and employers understand their rights and obligations concerning paid leave.

The CARES Act clarifies that a covered employer is not required to pay more than $200 per day and $10,000 in the aggregate for each eligible employee who takes leave provided by the Emergency Family and Medical Leave Expansion Act (i.e., leave to care for children due to school closures or unavailability of childcare as a result of COVID-19).

A significant feature of the CARES Act is the loan program known as the Paycheck Protection Program. Applicants can receive loan proceeds to be used for the payment of eligible payroll costs including compensation, medical or sick leave, group health care benefits (including insurance premiums), interest on debt obligations incurred before the covered period, and rent, mortgage and utilities payments during the covered period. 

A significant feature of the CARES Act is the loan program known as the Paycheck Protection Program. Applicants can receive loan proceeds to be used for the payment of compensation, commissions, health care costs, interest on debt obligations, rent and utilities as well as other traditionally allowable uses.

The Act authorizes the Secretary of the Treasury to make loans, loan guarantees, other investments and subsidies to provide liquidity for losses incurred as a result of coronavirus to air carriers, U.S. businesses, states and municipalities. 

The CARES Act includes many provisions for small business, including the paycheck protection program, economic injury disaster loans (EIDLs) and emergency grants, loan payment subsidies, and education, training and assistance grants to small business development centers, women business centers and minority business centers.

During the ongoing pandemic, businesses and individuals should be wary of social engineering cyber-attacks designed to exploit confusion and anxiety in this especially stressful time.

The Governor has encouraged businesses to donate essential medical supplies and personal protection equipment to local health care providers to be used in their COVID-19 efforts.

With many school districts and intermediate school districts continuing to provide services, whether through virtual learning or meals for needy families, we have compiled the available guidance to date as to what public education employees might fall within the exceptions.

All individuals living in Michigan must stay home and refrain from gathering in public or in private with people outside their household.

Miller Canfield has prepared a tracking chart of how various courts have responded to this crisis.

The practical impact to many commercial tenants – particularly small businesses without significant cash reserves – is that they will have difficulty paying employees and vendors, let alone making rent and loan payments. This should concern both landlords and creditors who hold their mortgages.

The federal Worker Adjustment and Retraining Notification Act (“WARN”) requires covered employers to provide advance notice of “plant closings” and “mass layoffs” that resulting in an “employment loss” at a single site of employment during any 30-day period. In addition to the statutory provisions, the U.S. Department of Labor has issued regulations establishing basic definitions and rules for giving notice.

Work Share allows employees to share available work at reduced hours and receive partial unemployment benefits. For example: If an employer were faced with laying off 3 critical full-time employees, it may be more beneficial for the company to reduce the hours of each employee and allow each to collect partial unemployment insurance benefits which correspond to the reduction in the employee's hours.

All California State's residents were ordered to stay home or at their place of residence, except as needed to maintain continuity of operations of the federal critical infrastructure sectors.

All Illinois residents are ordered to stay home or at their place of residence, except for "Essential Activities, Essential Governmental Functions, or to operate Essential Businesses and Operations."

Paid leave requirements under the FFCRA—the Emergency Paid Sick Leave Act, providing for paid sick leave, and the Emergency Family and Medical Leave Expansion Act, providing for expanded family and medical leave—are effective on April 1, 2020.

All Ohio residents were ordered to stay at home or their place of residence unless they are engaged in essential activities or essential governmental functions, or to operate essential businesses or operations, until April 6, 2020.

Although many business owners associate bankruptcy with going out of business signs and empty store fronts, a new bankruptcy law that went into effect in February 2019 is geared towards providing owners with debt relief while allowing them to continue operating their businesses.

If the employees' employment has actually been terminated, then a COBRA qualifying event will have likely occurred and the employees should be provided the option to elect continuation coverage pursuant to COBRA (or potentially other state continuation laws). However, in the context of many layoffs, leaves of absence, furloughs, and other reductions in force, a termination of employment does not actually occur. In such cases, the health insurance coverage analysis is more convoluted. 

The notice applies only to federal income taxes, including self-employment tax. It does not apply to any other federal tax, nor does it apply to any state or local income tax. A number of states separately are providing their own announcements of deferral of filing and payment.

The deferred filing date does not prevent a taxpayer that has overpaid its income tax from filing prior to July 15, 2020, for a refund of the overpayment.

This summary focuses on force majeure provisions in commercial leases; however, landlords and tenants should realize that commercial real estate will feel the effects of COVID-19 in many other ways.

Categories of small business eligible under the program are those detailed in Executive Order 2020-09, including restaurants and other places of public accommodation offering food or beverages for on premises consumption; bars, breweries, distilleries and other places of public accommodation offering alcoholic beverages for on premises consumption; theaters, cinemas and indoor and outdoor performance venues; libraries and museums; gymnasiums and fitness centers; licensed casinos, racetracks and millionaire parties; and other places of public amusement.

Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee's identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the employee's identity and employment authorization documents remotely (e.g., over video link, fax, or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days.

The definition of who is deemed to be an "essential worker" may change daily. Therefore, we advise all employers to use common sense in light of the advisory.

Miller Canfield provides the resources, legal and business advice to help clients respond to the COVID-19 pandemic, and plan to recover strong.

The legislation establishes paid leave and enhances access to unemployment insurance for employees.

Measures aimed at monitoring how the virus spreads may inevitably require processing "personal data," including health information about individuals who may have been exposed or infected with the virus. We highlight key data privacy considerations to keep in mind.

Employers who have been ordered to close or limit their operations due to an Executive Order will not be charged for unemployment benefits that their employees receive between March 16 and April 15, 2020.

While remote-work technology can provide opportunities to improve employee working conditions and facilitate ongoing work during this crisis, it can also create potential liabilities for businesses. Businesses adopting these policies should keep several key issues in mind.

As a result of COVID-19 and its effects, including government-ordered shutdowns and advisories, many businesses will voluntarily and involuntarily close or significantly reduce operations. Each business should assess what sources of funds might become available to cover losses and mitigate adverse financial effects, including insurance.

All immigrant and nonimmigrant visa appointments scheduled on Monday, March 16, 2020, onward have been cancelled. Once the posts are able to resume regular consular operations, appointments will be made available and individuals will be able to reschedule.

Going forward, the IRS intends to use issue-based examinations, updated forms and requests for guidance to promote voluntary compliance, to focus resources on the highest-risk research issues and to achieve examination consistency.

In light of the increasingly alarming spread of COVID-19 in the United States, employers and businesses need to be prepared for the potential COVID-19 pandemic.

For international supply contracts, Article 79 of the UN Convention on the International Sale of Goods ("CISG") may govern and determine if, and under what circumstances, a party affected by COVID-19 may be excused from performance.

The rule overturns the NLRB's 2015 decision in Browning Ferris Industries and significantly narrows the circumstances in which two employers will be found to be joint employers of a group of employees.   

With the expected spike of absenteeism, wage and hours problems can arise during a pandemic. Employers must always keep their obligations under the Fair Labor Standards Act ("FLSA") in mind in dealing with these issues.

Employers covered by the Family and Medical Leave Act (“FMLA”) must allow an eligible employee to take leave due to a serious health condition of the employee or to care for the employee’s close family member with a serious health condition. While COVID-19 shares flu-like symptoms, it is known to cause severe illnesses, complications, hospitalizations, incapacitation, and even death. Thus, it is possible that infection by COVID-19 may involve a serious health condition, requiring covered employers to provide eligible employees with FMLA job-protected leave.

The increasing fear around COVID-19, which was first detected in China, can lead to stigmatizing Chinese or other Asian individuals. However, according to the CDC, just being Chinese or Asian does not increase the chance of contracting or spreading COVID-19. Treating an employee adversely because of his or her race or national origin solely out of fear of pandemic virus implicates the non-discrimination obligation imposed on employers by Title VII and the ELCRA.

Employers are advised to plan and be prepared to respond to COVID-19 in designing and implementing an infectious disease outbreak response plan.

Employers and plan fiduciaries should take careful note of a recent ruling issued by the United States Supreme Court which may prompt increased Employee Retirement Income Security Act ("ERISA") litigation and otherwise alter the landscape of ERISA challenges. 

Several factors need to be considered, depending on the nature of the supply contract involved.

Employers may begin using the updated Form I-9 now. After April 30, 2020, employers must use the updated Form I-9.