May 21, 2020 Special Report
-Governor Reopens Retail & Auto Dealerships by Appointment, Authorizes Nonessential Medical, Dental and Veterinary Procedures  
-Updated Mandatory Workplace Safeguards for In-Person Activity
-PPP Loan Forgiveness Guidance Released
#SupportDownriver
On May 21, Governor Whitmer announced new statewide limited re-openings, including the reopening of auto dealerships and retail by appointment only (May 26), and authorizing certain nonessential medical procedures (May 29). Please review this resource for more information.

The SWCRC's resource page provides PPP loan forgiveness guidance from the U.S. Treasury, guidance on the Federal Reserve's Main Street Lending Program, and information on existing loans, grants and other guidance. Further, the U.S. Chamber of Commerce has provided new PPP loan forgiveness guidance HERE , and launched a new digital resource center , providing at a national level industry specific guidelines to reopening and a small business reopening "playbook."

Please follow the SWCRC on Facebook , where we are posting new legislative updates frequently, resources on safely reopening economic activity, and loan and grant resources for operational capital such as from the MEDC, a new Verizon Wireless business fund and more as they become available.
UPDATED : GOVERNOR WHITMER SIGNS EXECUTIVE ORDER 2020-97, UPDATING PREVIOUS ORDER TO SAFEGUARD WORKERS AS ECONOMIC ACTIVITY REOPENS UNDER EASED RESTRICTIONS
On May 21, Governor Whitmer announced that she has signed Executive Order 2020-97 , updating a prior rule ( 2020-91 ) on workplace safety. Per the amended order, reopened (under newly announced Executive Order 2020-96 detailed in the next section ) outpatient health-care facilities, including clinics, primary care physician offices, and dental offices, will have to adopt strict protocols to prevent infection. The release promises that the Department of Licensing and Regulatory Affairs will issue guidance to aid those facilities in adopting appropriate safeguards. 

As with the prior rule, the Executive Order establishes mandated safeguards to protect the workforce as businesses begin to restart in-person economic activity. The executive order mandates that each business requiring employees to leave their homes or residences for work establishes a Preparedness & Response Plan based on OSHA guidelines , and "by June 1, 2020, or within two weeks of resuming in-person activities, whichever is later, a business’s or operation’s plan must be made readily available to employees, labor unions, and customers, whether via website, internal network, or by hard copy." Businesses must also conduct a daily entry self-screening protocol, implement proper cleaning and sanitizing procedures, provide non-medical grade face coverings for staff, provide proper COVID-19 related training to employees including the proper use of PPE, and reporting unsafe working conditions to authorities. Further, the order mandates capacity limitations for workplaces, including industry specific instructions for retail stores, restaurants and offices. The executive order must be reviewed and followed by businesses as in-person activity is permitted to resume.
NEW : GOVERNOR WHITMER REOPENS AUTO DEALERSHIPS AND RETAIL BY APPOINTMENT (MAY 26), AUTHORIZES NONESSENTIAL MEDICAL, DENTAL AND VETERINARY PROCEDURES (MAY 29): GOVERNOR RELAXES RESTRICTIONS ON EATERIES AND RETAIL WITH LIMITED CAPACITY WITHIN SPECIFIC "UP NORTH" MERC REGIONS 6 & 8 BEGINNING MAY 22: WORKPLACE SAFETY REQUIREMENTS ANNOUNCED & UPDATED WITHIN EXECUTIVE ORDER 2020-97: LOCAL UNITS OF GOVERNMENT AUTHORIZED TO RETURN TO RESTRICTIONS IF DEEMED NECESSARY
According to a release and press conference on May 21, Governor Gretchen Whitmer signed Executive Order 2020-96  to reopen retail businesses and auto dealerships by appointment statewide on Tuesday, May 26, as part of her MI Safe Start plan. The governor’s executive order also lifts the requirement that health care providers delay some nonessential medical, dental, and veterinary procedures statewide beginning on Friday, May 29.  And the order authorizes small gatherings of 10 people or less starting immediately, as long as participants practice social distancing.

The governor also signed a separate order, Executive Order 2020-97 , updating a prior rule (EO 2020-91) on workplace safety. Per the amended order, reopened outpatient health-care facilities, including clinics, primary care physician offices, and dental offices, will have to adopt strict protocols to prevent infection. The release promises that the Department of Licensing and Regulatory Affairs will issue guidance to aid those facilities in adopting appropriate safeguards. 
 
As before, businesses maintaining in-person activities must adopt social distancing practices and other mitigation measures to protect workers. They must, among other things, provide COVID-19 training to workers that covers, at a minimum, workplace infection-control practices, the proper use of PPE, steps workers must take to notify the business or operation of any symptoms of COVID-19 or a suspected or confirmed diagnosis of COVID-19, and how to report unsafe working conditions. 
 
Consistent with the governor’s previous Safer at Home orders, any individual able to medically tolerate a face covering must wear a covering over his or her nose and mouth—like a homemade mask, scarf, bandana, or handkerchief—when in any enclosed public space. Michiganders who are not working as critical infrastructure workers or at a business that has been authorized to reopen should stay home to protect themselves and their families from the spread of COVID-19.

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Monday afternoon (May 18), Governor Whitmer announced Executive Order 2020-92 (now rescinded and replaced by Executive Order 2020-96) relaxing restrictions on eateries and retailers under safety guidelines (Executive Order 2020-97) within MERC regions 6 & 8 beginning May 22. Eateries in the Upper Peninsula and parts of northern Lower Peninsula within region 6 will be allowed to reopen dine-in services at 50% capacity, while retail spaces under 50,000 square feet must limit to 25% capacity. Further, public gatherings of 10 or fewer are allowed under the order within regions 6 & 8. The order further grants local units of government the authority to reinstate or maintain restrictions if deemed necessary. The Detroit area along with the rest of the State remain under the updated Safer at Home order within Executive Order 2020-96.

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Information on MI Safe Start Plan

The MI Safe Start plan will be composed of 6 stages, in which Michigan is currently in the third stage according to the Governor. The 6 stages were drafted in partnership with the Michigan Economic Recovery Council (see below information). The 6 stages include: 1) Uncontrolled growth; 2) Persistent spread; 3) Flattening of the curve; 4) Improving in which cases and hospitalizations are on the decline; 5) Containment; and 6) Post-pandemic in which treatments are available. In the 4th stage of the plan, some retail and offices would be allowed to reopen under safety precautionary procedures, capacity limits and encouraging teleworking when possible. The details of the MI Safe Start plan including an outline of each phase are located HERE .

The Michigan Economic Recovery Council (MERC), led by DTE Energy Executive Chairman Gerry Anderson and former Henry Ford Health System CEO Nancy Schlichting, has been working to provide guidance and recommendations to the governor on how to safely reopen the economy based on 8 "MERC regions" throughout the State. The regions are defined based on travel patterns of workforce to the workplace, and healthcare capacities within those regions. MERC regions can be viewed HERE .

Governor Whitmer recently implemented Executive Order 2020-69 extending the restrictions on the use of public accommodations such as restaurants, theaters and bars until May 28, 2020. Click HERE for FAQs on this executive order.
UPDATED: SBA & US CHAMBER RELEASE PPP LOAN FORGIVENESS GUIDANCE, APPLICATION & INSTRUCTIONS. U.S. TREASURY ISSUES NEW PPP LOAN FORGIVENESS GUIDANCE, INCLUDING EMPLOYEE REFUSALS TO RETURN TO WORK
NEW : Under the Paycheck Protection Program (PPP), loans may be forgiven if borrowers use the funds to maintain their payrolls and pay other specified expenses.  Click here  to download this step-by-step guide from the U.S. Chamber of Commerce to calculate your loan forgiveness amount, navigate record-keeping requirements, and determine repayment terms on amounts not forgiven. 

The U.S. Small Business Administration (SBA), in consultation with the Department of the Treasury, released an application form Friday for Paycheck Protection Program (PPP) loan forgiveness along with instructions for completing the form. This form is provided for informational purposes. Businesses should consult with their CPA when preparing the PPP loan forgiveness application. View the sample form and instructions HERE . Note: Your lender will have specific documents and instructions for the PPP loan forgiveness application.

Overview:   In recent weeks, and in response to significant public pressure, the SBA and Treasury appear to have determined that certain companies should not receive the benefits of PPP loans for which they qualified under the law. As a result, the SBA has advised that “all borrowers should review carefully the required certification” that current economic uncertainty makes the loan necessary after taking into account their current business activity and access to other sources of liquidity. As an incentive for companies who are unable to make the good faith certification of necessity to repay the loans, the SBA created a “safe harbor” to provide that borrowers would be deemed to have met the necessity certification requirements if the loans were repaid in full on or before May 7, 2020, and the deadline for the repayment safe harbor was subsequently extended to May 14, 2020. As additional incentive for companies to repay PPP loans during the safe harbor, the federal government has indicated that it will investigate PPP borrowers and may pursue criminal investigations in cases in which certifications on the loan application are determined to be fraudulent. On April 29, 2020, more than one month after the CARES Act was signed into law, the SBA announced that it intends to review (i.e., “audit”) all PPP loans of more than $2M, along with other loans, “as appropriate.” One key motivation for such audits is the government’s view that the benefits of the PPP should not be afforded to companies that have alternative sources of liquidity to fund ongoing operations “in a manner that is not significantly detrimental to the business.”

Borrowers with loans of or under $2 Million:  As of May 13, 2020, the U.S. Treasury has released  new guidance via FAQ . Under the new FAQ, borrowers of $2 million or less will be deemed to have made in good faith the required certification concerning the necessity of this loan. In Question #46, the FAQ specifically spells out that most businesses with loans below this level are “less likely to have had access to adequate sources of liquidity in the current economic environment than borrowers that obtained larger loans.”

It is important for PPP borrowers to review this new guidance in preparation for loan forgiveness.  Potential for Fraud:  For small businesses that borrowed funds under the PPP, if the federal government determines that there has been a false certification, the company or individual signing the certification could face serious civil and, potentially, criminal charges related to this “fraud.”

Documentation of Necessity or Repayment of PPP Loan:  Any business that borrowed PPP loan funds should consider whether, and how, it can document compliance with the CARES Act necessity “certification” requirements. A meaningful review of necessity for PPP loans is recommended for all borrowers, and could prove to be absolutely critical for any borrower that: is publicly traded; is a United States subsidiary of a foreign parent; has access to other sources of liquidity; or is a borrower of more than $2M. Unless the full loan is repaid by May 14, every such borrower should be prepared for an SBA audit of both its PPP loan application, and its uses of PPP loan funds.

*Key source along with Treasury FAQ:  Bodman Law article

PPP loan forgiveness guidance on employees refusing offer of work:  What happens if you call back laid-off employees and they are reluctant or refuse to return to work?

The Small Business Administration (SBA) and Department of Treasury recently answered this question in their  PPP Frequently Asked Questions . While promising to issue a formal rule, the FAQ states the following:

Question 40:  Will a borrower’s PPP loan forgiveness amount (pursuant to section 1106 of the CARES Act and SBA’s implementing rules and guidance) be reduced if the borrower laid off an employee, offered to rehire the same employee, but the employee declined the offer?

Answer:  No. As an exercise of the Administrator’s and the Secretary’s authority under Section 1106(d)(6) of the CARES Act to prescribe regulations granting de minimis exemptions from the Act’s limits on loan forgiveness, SBA and Treasury intend to issue an interim final rule excluding laid-off employees whom the borrower offered to rehire (for the same salary/wages and same number of hours) from the CARES Act’s loan forgiveness reduction calculation. The interim final rule will specify that, to qualify for this exception, the borrower must have made a good faith, written offer of rehire, and the employee’s rejection of that offer must be documented by the borrower. Employees and employers should be aware that employees who reject offers of re-employment may forfeit eligibility for continued unemployment compensation.
UPDATED: CDC RELEASES NEW TOOLS TO HELP SPECIFIC INDUSTRIES REOPEN. EPA AND CDC ISSUE JOINT GUIDANCE FOR ALL BUSINESSES REGARDING CLEANING & SANITATION
NEW: Last week, the CDC introduced new industry specific guidance, including 1 page tools designed to guide general workplaces and restaurants/bars as they plan to safely reopen. Please review these valuable tools, including guidance for community events, churches and community organizations, recreational facilities, educational institutions and more HERE .

The CDC and EPA have released guidance for all businesses for cleaning and sanitizing the workplace as businesses begin to reopen safely. The Guidance is based on the President's Open Up America Again plan, and  is intended for all Americans, whether they own a business, run a school, or want to ensure the cleanliness and safety of their home. The Guidance can be viewed HERE .

Business must begin to plan and execute safety practices to protect the workforce and community. Below are links that provide resources and guidance from the CDC, U.S. Occupational Safety & Health Administration (OSHA) and MIOSHA. Further, the following section provides templates for Preparedness and Response Plans. These templates are for information purposes only and not for the purpose of providing legal advice. You should contact legal counsel to obtain advice with respect to your individual workplace.    

The MIOSHA website includes guidance on an interim COVID-19 complaint enforcement plan, FAQs, and guidance for businesses on who can perform in-person work under the current executive order.

Businesses must abide by and regularly check updated CDC, State, OSHA, and local guidelines as information is rapidly changing . At this time, there are no protections in place for employers who are operating under this guidance or that open too soon.
PREPAREDNESS AND RESPONSE PLAN TEMPLATES TO PROVIDE INFORMATION FOR EMPLOYERS
According to Executive Order 2020-97 , businesses are required to develop a “COVID-19 preparedness and response plan," consistent with guidelines provided by OSHA . The Michigan Chamber of Commerce in partnership with the Bodman Team have prepared templates for a plan in the 4 categories of low, medium, high and very high risk employers. The templates should be tailored to the employer’s particular risk level, maintained and implemented. These templates are for information purposes only and not for the purpose of providing legal advice. You should contact legal counsel to obtain advice with respect to your individual workplace.    
WEBINARS TO HELP OUR MEMBERSHIP PLAN FOR REOPENING
Many employers are thinking about reopening their businesses after the “Stay Home” Order is lifted. But there are many things to think through in advance, including staffing, legal concerns and more. There are several webinars on demand to help employers to prepare, such as:  

-Returning to Work: Best Practices for Employers in a COVID-19 World
BEAUMONT OFFERING SEROLOGIC ANTIBODY TESTING TO EMPLOYERS. WAYNE COUNTY AND WALMART OPEN DRIVE-THROUGH TESTING SITE AT SAM'S CLUB IN SOUTHGATE AND WALMART IN TAYLOR.
Beaumont Health is providing area employers with the opportunity to participate in a serologic antibody testing program to assist with reopening strategies. More information located HERE .

A COVID-19 drive-through testing site is open in the parking lot of the Sam’s Club, located at 15700 Northline Road, in Southgate. A COVID-19 testing site is also opening May 15 at the Taylor Walmart store, located at 7555 Telegraph Road.
FEDERAL OPENING UP AMERICA AGAIN OVERVIEW
President Donald Trump unveiled the Opening Up America Again plan , providing guidance for a 3-phase approach to reopen the U.S. economy as the nation works to contain the COVID-19 virus. The plan proposes that states and/or regions must first meet the gating criteria prior to moving into the phases identified within the plan. The gating criteria includes a reduction in the trajectory of reported influenza-like illnesses and documented COVID-19 cases within a 14-day period, and the establishment of a robust testing program for at-risk healthcare providers along with the ability to treat all patients without crisis care. The guidelines also establish responsibilities for each state, including among others the ability to setup efficient testing sites, the ability to quickly and independently provide personal protective equipment, the ability to effectively protect employees within critical and high risk industries, and the ability to provide guidance on social distancing while monitoring conditions and being ready to take immediate action to mitigate any rebounds of the virus.

The guidelines provide for a 3-phase approach, in which employers throughout all phases are called on to implement the appropriate policies and best practices such as: social distancing and personal protection equipment; temperature checks; testing and isolation policies; sanitation and disinfecting high traffic surfaces and areas; and safe business travel guidelines and policies.

Phase 1: For states and regions who meet the gating criteria, the following guidelines are provided: All vulnerable individuals must remain in shelter in place. When in public, individuals should maintain social distancing practices and avoid public gatherings of 10 or more. Non-essential travel should be avoided or minimal. Employers should continue to encourage teleworking. Returning to the workplace should be done in phases. Common gathering places at workplaces should be closed. Gyms can open if they adhere to strict physical distancing and sanitation protocols. Bars should remain closed.

Phase 2: For states and regions showing no evidence of a rebound of the virus and satisfying the gating criteria a second time. Continue to encourage teleworking policies. In common gathering areas in the workplace, social distancing policies should be observed. Non-essential travel may resume. Schools can reopen. Large venues can begin to operate under moderate physical distancing protocols. Bars may operate with diminished standing-room occupancy, where applicable and appropriate.

Phase 3: For state and regions with no evidence of a rebound of the virus and satisfying the gating criteria a third time. Employers can resume unrestricted staffing of work sites. Vulnerable population can return to public places while practicing social distancing. Large venues can operate under limited physical distancing procedures. Bars may operate with increased standing room occupancy.
#SupportDownriver & #SupportSouthernWayneCounty CAMPAIGN
Together as one community, we are launching a unified regional campaign to support our local businesses, and to revitalize our local economy in a safe, responsible, and effective way. The campaign is called  #SupportDownriver , and  #SupportSouthernWayneCounty  for municipalities represented by the Downriver Community Conference and Southern Wayne County Regional Chamber who count themselves as outside of the traditionally recognized "Downriver" communities. As one united community, we will save lives, businesses and jobs. While we do everything that is necessary to protect the health and well-being of our community, we cannot standby as our region's job providers and entrepreneurs lose everything they have worked so hard to gain not only for themselves, but for the people of our region. We are asking all of our communities, members and the entire Downriver business community to participate in this positive and encouraging messaging. Use the graphics, posting and tagging as many local businesses as often as possible. NOW MORE THAN EVER, it is vital that we support our Downriver and southern Wayne County job providers, entrepreneurs and workforce. Campaign graphics and more information can be found by clicking the below link.