Coronavirus (COVID-19) Resource Center
The Kreis Enderle team is available to you as concerns arise over the coming months and to help you navigate your business or personal needs through COVID-19 related issues.
Our team members are ready to provide guidance and counsel on the full array of COVID-19 legal concerns that could impact you and your business operations. On this page, you'll find important information about dealing with COVID-19's impact.
At Kreis Enderle, our clients, employees, and their families are the center of everything we do as a firm. In response to the COVID-19 virus, we want to reassure you we are taking proactive steps to maintain the health and well-being of our clients, employees, and others we connect with while continuing to offer the best legal services available....Read More →
Labor and Employment Law Updates
Michigan Governor Whitmer’s Executive Order Provides Additional Employment Protections During the Coronavirus Crisis
On April 3, 2020, Governor Whitmer signed Executive Order 2020-36, which protects Michigan employees from retaliation. Specifically, the mandate prevents employers from taking adverse action … Continue Reading
Small Businesses May Be Exempt from the Families First Coronavirus Response Act’s Paid Sick Leave Provisions
The Families First Coronavirus Response Act (FFCRA) is an effort to help the country combat the economic impact of the COVID-19 coronavirus by offering tax … Continue Reading
Because of the severe coronavirus restrictions implemented by Governor Whitmer’s “Stay Home, Stay Safe” executive order, many Michigan businesses are being forced to significantly reduce … Continue Reading
In an unprecedented expansion of unemployment insurance, the federal government will provide jobless workers an extra $600 a week on top of their state benefits … Continue Reading
On March 24, 2020, the U.S. Department of Labor (DOL) issued its first guidance related to the Families First Coronavirus Response Act (FFCRA). Besides these … Continue Reading
In response to the COVID-19 coronavirus pandemic, the U.S. Department of Labor (DOL) recently issued guidance to help employers deal with related wage and overtime issues … Continue Reading
On March 18, 2020, Congress passed, and the President signed into law, the Families First Coronavirus Response Act, an economic stimulus plan intended to cushion … Continue Reading
Business Law Updates
Many employers are scrambling to prepare their loan applications to participate in the Paycheck Protection Program (PPP), with lenders accepting and processing applications as of … Continue Reading
As Michigan businesses sift through the meaning and applications of Governor Gretchen Whitmer’s Executive Order 2020-21 (COVID-19), one question circulating in the construction industry is … Continue Reading
TThe Coronavirus Aid, Relief, and Economic Security (CARES) Act recently signed into law contains several resources and programs to support small businesses impacted by the … Continue Reading
Self-Employed Individuals and Independent Contractors Are Eligible For New Paycheck Protection Program Loans
The Paycheck Protection Program (PPP) established by the recently passed Coronavirus Aid, Relief, and Economic Security (CARES) Act provides qualifying small businesses impacted by the … Continue Reading
Michigan Governor Whitmer Temporarily Suspends Certain Open Meetings Act Requirements During COVID-19 Emergency
To “flatten the curve” of the coronavirus outbreak, many Americans have been ordered to shelter-in-place and practice social distancing. Those restrictions, however, have caused Michigan’s … Continue Reading
As most Michigan business owners are aware, Governor Whitmer’s “Stay at Home Stay Safe” executive order and related federal guidelines have had a dramatic impact … Continue Reading
In the wake of Governor Whitmer’s “Stay Home, Stay Safe” order, small businesses across Michigan have closed their doors, ceased their operations, and idled their … Continue Reading
Getting Financial Assistance for Your Small Business from the Federal Government During the COVID-19 Pandemic
The coronavirus emergency is hitting the U.S. economy hard, and small businesses in Michigan and other states are feeling the brunt of it. In response, the … Continue Reading
It would be a gross understatement to say that the COVID-19 pandemic and its economic fallout is devastating small businesses in Michigan and across the … Continue Reading
To help flatten the curve of the COVID-19 coronavirus pandemic, Governor Gretchen Whitmer signed the “Stay Home, Stay Safe” Executive Order today, directing all Michigan … Continue Reading
Family Law Updates
Because of the coronavirus pandemic, Michigan Governor Gretchen Whitmer ordered the suspension of all in-person K-12 instruction for the remainder of the 2019-2020 school year. … Continue Reading
COVID-19 has hit families hard in Michigan and across the country. For divorced and unmarried parents, there are family law issues with parenting time and … Continue Reading
Divorce is a challenge. Parenting time battles are hard. These are obvious statements, but what happens when we throw a coronavirus outbreak in with a … Continue Reading
With potentially millions of Americans facing unemployment, people with student loans worry they will default if they cannot make payments. Fortunately, the Department of Education … Continue Reading
Governor Whitmer’s “Stay Home, Stay Safe” Executive Order requires Michigan residents to “Shelter in Place” to stem the COVID-19 coronavirus. While workers and businesses have … Continue Reading
Estate Planning Law Updates
As the COVID-19 pandemic marches on, Michigan residents are sheltering in place in our homes while others may be in nursing homes, hospitals, or other … Continue Reading
Civil Litigation Updates
In response to Governor Gretchen Whitmer’s March 24, 2020, stay-at-home order requiring nonessential businesses and workers to stay home, the Michigan Supreme Court issued two … Continue Reading
COVID-19: LEGAL Frequently Asked Questions
What does the Stay-Home, Stay Safe Executive Order Mean?
In short, the Stay-Home, Stay Safe Executive Order requires all Michigan residents to stay in their own homes through April 13, 2020. There are limited exceptions but those include “critical infrastructure workers” who are necessary to sustain or protect life. Those attending legal proceedings as ordered by the court.
Can I travel anywhere?
Yes. Under the order, you can still leave your home under the following circumstances:
- To engage in outdoor activity (i.e. exercise outdoors) while remaining at least six feet
from people outside of your household.
- To perform your critical infrastructure employment.
- To secure medical or emergency dental care treatment or prescriptions.
- To obtain groceries, take-out food, gasoline, medical supplies, and other products necessary for the basic operation of your home.
- To care for a family member or family member’s pet in another household.
- To care for minors, dependents, elderly, persons with disabilities, or other vulnerable people.
- To visit someone in a health care facility, residential care facility, or congregate care facility.
- To attend legal proceedings as ordered by the court.
- To volunteer to provide food, shelter, or other necessities to the economically disadvantaged.
- To return to a home or residence outside of Michigan or vice-versa.
- To travel between two residences in Michigan.
- For purposes of parenting time exchanges pursuant to a custody agreement.
What is critical infrastructure worker?
Critical infrastructure workers include, but are not limited to, the employees in the following sectors:
- Health care and public health.
- Law enforcement, public safety, and first responders.
- Food and agriculture.
- Waste and wastewater.
- Transportation and logistics.
- Public works.
- News media.
- Other government operations and essential functions.
- Critical manufacturing.
- Hazardous materials.
- Financial services.
- Chemical supply chains and safety.
- Defense industrial base.
What are the modifications to the Family Medical Leave Act (FMLA)?
The below modifications are effective from April 1, 2020 through December 31, 2020.
- Employers with fewer than 500 employees are subject to FMLA expansion. There are exceptions for employers with less than 50 employees.
- The eligibility requirement in lowered to include any employee who worked for the employer for at least 30 days before the designated leave and those employees may be eligible to receive paid family and medical leave.
- Exemptions: The Act includes language that excludes healthcare providers and emergency responders from the definition of employees who may take this new leave, and to exempt small businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business.
- The first ten days of Emergency FMLA may be unpaid and supplemented with any accrued paid time off, sick time, or vacation time. After ten days, the employer generally must pay full-time employees at two-thirds the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled to work. The Act limits this pay entitlement to $200 per day and $10,000 in the aggregate per employee.
What is the Emergency Paid Sick Leave Act?
The Emergency Paid Sick Leave Act will also become effective on April 1, 2020 and applies to employers with fewer than 500 employees. Those employers must provide eighty hours or the equivalent of two weeks’ worth of paid sick leave to all employees. The sick leave will be used for those quarantined due to a governmental order; those self-quarantined based on healthcare provider recommendation; or those dealing with symptoms of COVID-19. The paid sick leave can also be used to care for an individual in one of the situations mentioned or to care for a child whose school or day care is closed due to COVID-19.
Can we require an employee to provide a note from a doctor’s office if the employee is out of work due to an illness?
Yes, if this is your typical policy or practice and you follow that policy or practice consistently. However, the CDC and other government agencies are suggesting that employers consider waiving the requirement to provide doctor’s notes because they anticipate that health care providers will be inundated with requests for those notes.
Can employers take employee temperatures at work?
Yes. Per the EEOC in a Q&A updated on March 19, 2020: “Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.”
If an employee returns from vacation, may I ask the employee about the countries they traveled to?
Yes. And if the employee has been in a country where the CDC is warning against nonessential travel (currently, Austria, Belgium, mainland China, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Iran, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, South Korea, Spain, Sweden, Switzerland, Monaco, San Marino and Vatican City), you may require the employee to stay home or work remotely for a 14-day quarantine period.
Can we prohibit employees from traveling to those countries identified by the CDC?
Probably not. Many states have off-duty conduct laws that prohibit employers from regulating what employees do outside of work hours. You may, however, advise employees of the risks of traveling to those countries and tell them that they will need to self-quarantine when they return from their trip.
How should I handle employee medical information?
If an employer receives confidential medical information about an employee, the employer should take all reasonable steps to protect the privacy and medical information of the employee. In general, employers are required to maintain all information about employee illnesses as a confidential medical record. If employers have hardcopy or electronic copies of employee medical files, those files should be kept separate from the employee’s other personnel records, and access to the medical records should be limited. These files should be kept in a secure, locked filing cabinet or a password-protected electronic file.
Is COVID-19 a disability under the Americans with Disabilities Act (ADA)?
Maybe. Under the ADA, a disability is (1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such impairment, or (3) being regarded as having an impairment. A normal, uncomplicated case of COVID-19 (similar to the flu) is unlikely to be considered a “disability” within the meaning of the ADA because it is unlikely to limit one or more major life activities and is typically transitory. Should an employee develop pneumonia or begin to have issues with breathing, COVID-19 might be considered a disability. However, it is likely that those with COVID-19 will be “regarded” as having an impairment. The standard for establishing a disability is low, so employers would be wise to treat COVID-19 as a disability and focus their efforts on what needs to be done with respect to that disability.
Can an employer terminate an employee because they have coronavirus or if the employer believes they have coronavirus?
No. You cannot discipline, terminate or otherwise discriminate against an employee simply because he or she has an actual or presumptive case of COVID-19.
Do we need to pay employees who are quarantined, whether mandatory or self-quarantine, or who are sick? What about employees who are caring for a sick family member?
Leaving aside the issue of paid sick leave and paid leave under the proposed federal legislation discussed above, whether an employer is obligated to pay workers who are not at work depends on whether the employee is classified as exempt or nonexempt. A nonexempt worker (i.e., someone who is eligible for overtime pay), must only be paid for actual time worked. Generally, exempt employees must be paid in full-week increments. So, if the business closes and the employee has worked any time at all in that week, the exempt employee must be paid for the full week. The employer may require the exempt employees to take vacation and debit their leave bank account, provided the employees receive in payment an amount equal to their guaranteed salary. There are some exceptions to the general rule that exempt employees must be paid in full-week increments. For example, an employer is not required to pay an exempt employee when the employee is absent from work for a whole day because he or she is sick and has exhausted all permitted paid sick days under an established sick leave policy, or when the employee is on leave under the FMLA. In addition, in the absence of the proposed federal legislation set forth above, an employer does not have to pay an exempt employee when an employee is absent from work for a whole day because of personal issues that are not because of the employee’s own sickness or disability, such as if they are having issues with public transportation or childcare issues.
If we become short-staffed due to the pandemic, can we ask employees to volunteer to help out?
No. The Fair Labor Standards Act (FLSA) has strict requirements with respect to volunteers, and employees may not waive their right to be paid for time worked. There are certain exceptions when the employee is volunteering to do something that is other than his or her normal work, such as at an outside community service event, volunteer day or pro bono work. The work must be purely voluntary, take place outside of regular work hours, and participation may not bring direct economic benefit to the business.
Can I layoff or terminate an employee?
If you choose to layoff or terminate employees in the face of economic impact, be mindful of your state’s wage payment laws, some of which may require immediate payment of all wages, including fringe benefits. Read More
Are workers affected by COVID-19 eligible for unemployment benefits?
Yes. Eligible employees are strongly encouraged to apply for unemployment benefits online at Michigan.gov/UIA or by calling 866-500-0017. A factsheet on how to apply for benefits can also be found online. On March 12, 2020, the U.S. Department of Labor issued guidance making it clear that states are permitted to pay unemployment compensation benefits to individuals who: (1) are unable to work because an employer has temporarily ceased operations; (2) have been quarantined with the expectation of returning to work; or (3) have left employment to avoid exposure to COVID-19 or to care for a family member.
Do I have to pay my employees for hours not worked?
Federal labor law does not require the employer to pay non-exempt employees for time spent not working. Employers are only required to compensate employees for actual hours worked. But be aware, enactment of the Revised Families First Coronavirus Response Act will provide for certain paid leave benefits. For exempt employees, the rules for payment of wages are more complex. It’s essential to contact an attorney before implementing pay reduction policies. Read More
If a business has “Critical Infrastructure Workers,” does it still need to limit its number of workers or impose other restrictions on its workforce?
Yes. Section 5(c) of Michigan Executive Order 2020-21 imposes a number of requirements on the operations of business with Critical Infrastructure Workers. These are:
Businesses and operations maintaining in-person activities must adopt social distancing practices and other mitigation measures to protect workers and patrons. Those practices and measures include, but are not limited to:
Restricting the number of workers present on premises to no more than is strictly necessary to perform the business’s or operation’s critical infrastructure functions.
- Promoting remote work to the fullest extent possible.
- Keeping workers and patrons who are on premises at least six feet from one another to the maximum extent possible, including for customers who are standing in line.
- Increasing standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace.
- Adopting policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person who is known or suspected to have COVID-19.
- Any other social distancing practices and mitigation measures recommended by the Centers for Disease Control.
Businesses with Critical Infrastructure Workers should make sure that they are implementing each of the above requirements, and preserving documentation on their compliance with these requirements.
Do OSHA and/or worker’s compensation laws apply when employees “telework”?
OSHA does not regulate “telework” in home offices. However, for employers required to keep records of work-related injuries and illnesses, they must keep such records related to home office injuries and illnesses. Additionally, an employee having to stay away from work because of contracting COVID-19 may qualify for workers’ compensation if the employee’s job requires contact with individuals with the disease. Read More
What is the Families First Coronavirus Response Act?
The Families First Coronavirus Response Act is an economic stimulus plan intended to cushion the impact of the COVID-19 outbreak on Americans and introducing paid sick leave and an expanded family and medical leave act to the nation’s employers. The Act includes many provisions applicable to employers, such as paid sick leave for employees impacted by COVID-19 and those serving as caregivers for individuals with COVID-19. Read more.
What should an employer do if a healthy employee is scared to come to work because of fears about COVID-19?
Under the Occupational Safety and Health Act, employees can refuse to work if “imminent danger” exists. The “imminent danger” threshold is a difficult threshold to meet as it requires objective evidence of imminent death or physical harm. This is unlikely to be the case in most work environments, but employers should examine each workplace on a case-by-case basis. Employers should also be careful if employees act/protest together in an effort to avoid certain work tasks due to fears of the virus. This activity could be considered engagement in protected concerted activity and protected by the National Labor Relations Act. If an employer punishes this type of concerted activity, the employer could face an unfair labor practice charge.
Will my hearing or trial go on as scheduled?
The Michigan Supreme Court issued Administrative Order 2020-02 which limits in-person court activity to essential functions only. Those functions include, but are not limited to, arraignments for in-custody criminal defendants, search warrants, personal protection orders, certain child protective proceedings, and critical issues regarding child support and child custody. All other hearings/trials/functions will be conducted via video/phone conferencing or will be rescheduled accordingly. It is important to check with your attorney or the court prior to the scheduled proceeding to determine the individual status.
Will my deadlines with the court be extended?
The Michigan Supreme Court issued Administrative Order 2020-08 which extends deadlines for civil and probate case initiation and initial responsive pleadings. The deadline is extended by not including any day that falls during the state of emergency declared by Governor Whitmer related to COVID-19. This means that you treat those particular days as if they do not exist when tallying up deadlines. This order applies to complaints, cross-claims, counterclaims, third-party complaints, answers, replies to answers, motions for dismissal, and motions for summary disposition.
Will my deposition go as scheduled?
Depositions may be performed as scheduled if the depositions are conducted by means of simultaneous audio and visual electronic recording. This means remote depositions may be conducted.
Does the Stay-Home, Stay-Safe Executive Order mean I cannot have my parenting time?
No. Governor Whitmer’s Stay Home, Stay Safe Executive Order 2020-21 specifically allows travel of children pursuant to a custody agreement. When you are traveling for parenting time exchanges, keep a copy of the current custody order with you in case you are stopped and must provide proof.
If I lose my job because of COVID-19 can I have my child support modified?
First and foremost, you are responsible for payment of child support in the amount and for the duration of your current order until the court orders otherwise. Child support is modifiable by either asking the Friend of the Court to modify the order or by filing a motion with the court based on a change of circumstances in your income. Of course, a loss of employment because of COVID-19 would likely be a change of circumstances.
Can we modify parenting time during the Stay-Home, Stay-Safe Executive Order?
Please review your order and note it usually will contain a provision that the parenting time schedule is subject to alteration based upon the agreement of both parents as to what they believe is best for their children. If a dispute occurs, whether one home is safe and the other is unsafe, parents are supposed to follow the order. “Self Help” by refusing to exchange or attempting to force an exchange is not appropriate, especially given the Supreme Court’s directive. If there be a perceived actual risk of harm to a child due to the COVID-19 coronavirus, filing an emergency motion with the family court is an appropriate remedy. Read More
Can I still evict someone for not paying rent?
Yes and no. A tenant still has an obligation to pay rent in accordance with the terms of the lease but a landlord may not serve a demand for payment of rent until April 18, 2020. However, continue keeping accurate records and as soon as the suspension is lifted you may proceed.
If I cannot perform on a contract because of a COVID-19 delay, what will happen?
In potential breach of contract cases it is imperative that you look to the terms of your contract. There is likely a provision in your contract that discusses breaches of contract, notification requirements, remedies for default, and even exceptions for unforeseeable circumstances that prevent a party from fulfilling a contract (aka force majeure). Make sure that you comply with all provisions of the contract and seek appropriate legal counsel as needed.
Can I get an Economic Injury Disaster Loan?
Pursuant to the recently enacted Coronavirus Preparedness and Response Supplemental Appropriations Act (the Act), the SBA can issue, upon a request by a state’s governor, an Economic Injury Disaster Loan (EIDL) declaration for that state. Such a declaration allows the SBA to offer EIDLs to qualifying businesses that they can use to “pay fixed debts, payroll, accounts payable and other bills that can’t be paid because of the disaster’s impact.”
In Michigan, the SBA issued an EIDL declaration by identifying Disaster No. MI00081. Under that declaration, businesses in the following counties are currently eligible to apply for an EIDL:
- All counties within the State of Michigan.
- The contiguous Indiana counties of Elkhart, La Porte, LaGrange, St. Joseph and Steuben.
- The contiguous Ohio counties of Fulton, Lucas, and Williams.
- The contiguous Wisconsin counties of Florence, Forest, Iron, Marinette, and Vilas.
Are licensed marijuana retailers allowed to remain open?
Yes. The Michigan Marijuana Regulatory Agency has provided guidance regarding the Stay-Safe, Stay-Home Executive Order and facilities are permitted to remain open with some restrictions. Licensed retailers may remain open but are limited to sales via curbside service or delivery. Transactions within the establishment are prohibited.
Is there an extension in prequalification status as a result of the current State of Emergency?
Yes. The Michigan Marijuana Regulatory Agency has extended prequalification status expiration dates for a period of 90 days beginning on March 18, 2020. This extension applies to applications currently in prequalification status, applications in an already approved extension, and all applications granted prequalification status.
Is delivery of marijuana allowed?
Yes. In accordance with MMFLA Administrative Rule, R 333.282 and MRTMA Emergency Rule 57, licensed centers and retailers may provide delivery of marijuana. Home delivery is encouraged and the Michigan Marijuana Regulatory Agency has outlined procedures for delivery. In addition to delivery, curbside pickup is also permitted.
What if my identification card is expired and I cannot renew because the Michigan Secretary of State offices are closed?
The Michigan Marijuana Regulatory Agency has issued an Advisory Bulletin that permits the sale of marijuana to patients, caregivers, and customers with expired driver’s licenses or expired government-issued identification cards.
Will I be prevented from getting medical marijuana if my registry identification card is expired?
No. The Michigan Marijuana Regulatory Agency has issued an Advisory Bulletin that permits the use of a registry identification card that has expired in the preceding 60 days.