The analysis
In plain terms: nothing was voluntary. From March 2020 through September 30, 2021, three layers of law told every employer in every State how it could operate. The emergency orders let a business open only on conditions: occupancy caps, distancing, screening, sanitation, face coverings. Standing statutes older than the pandemic commanded every person to prevent the spread of communicable disease and every employer to keep a safe and healthful workplace, with fines, license actions and jail for refusal. The liability shields the legislatures passed in 2020 and 2021 protected only the business that followed the government's standards. If you wrote "we chose to" on a form when you spaced your tables, screened your staff or cut your hours, you described what you did, not its legal character. The statute asks whether the change would have been required without the orders. It does not ask what you called it. This page sets out that law, layer by layer and State by State.
The conclusion
The Service's ground under Q&A-14 of the Notice, that an employer's measures were "voluntary" and "not due to a governmental order," presupposes that no governmental command reached the employer. The United States and the District Court have defined the excluded employer in those terms: one that "is voluntarily suspending its own operations, not being ordered to do so," one that "could nonetheless, with telework, 'continue operations comparable to its operations prior to the closure' but chooses not to."1 No employer in the United States answered that description on any day of the six quarters, because a statute that commands conduct is an order. The Suspension Clause names the instrument and says nothing about its form: an order is a command to be obeyed, and a statute, regulation or rule that says "shall" or "must," or that makes non-compliance an offense, is exactly that. The clause says nothing about the source of the command, and a legislature, a health department, a labor department and an occupational-safety agency are each an appropriate governmental authority. Three layers of such commands bound every employer in every jurisdiction throughout the period. The emergency orders permitted a business to operate only on conditions, and wrote the health authorities' protocols into those conditions by reference. Standing statutes that predate the pandemic commanded every person to prevent and control communicable disease, commanded every employer to furnish a safe and healthful workplace, and punished disobedience of health and emergency orders as crimes. The legislatures then fixed the standard of care, in most States retroactively to the first days of the emergency, as compliance with the governmental standards, guidance and protocols. A business that did what those instruments required was performing legal duties. The word "voluntary" describes none of it. The table at the end of this page sets the three layers out for all fifty States and the District of Columbia.
The statutory test establishes the same result from the other side. "Due to" means "because of," and "because of" is but-for causation; the court in Tri-State so held on the parties' agreed definition and refused the United States' "proximate, independent, and sufficient cause" formulation as one that "improperly adds words into the statute."2 The clause contains no element of motive, intent or self-description. The counterfactual it poses is objective: whether, had the orders not issued, the law would have required the change. Where the answer is no, the change was made because of the orders, whatever the owner later called it. A lay characterization of a legal question ("voluntary," "we chose," "for safety") is not evidence of the legal fact; the Federal Rules of Evidence and every circuit exclude such characterizations because they convey "the witness' unexpressed, and perhaps erroneous, legal standards."3 The Service's own doctrine holds that "the incidence of taxation depends upon the substance of a transaction," not on the label a party attaches to it.4 And the Supreme Court has held for more than a century that conduct performed under threat of a penalty is performed under duress, not voluntarily: "as conduct under duress involves a choice, it always would be possible for a State to impose an unconstitutional burden by the threat of penalties worse than it in case of a failure to accept it, and then to declare the acceptance voluntary."5
The Notice's own words say the same. Q&A-14 reaches only a suspension "not due to a governmental order." Q&A-17 and Q&A-18 treat a modification "required by a governmental order as a condition of reopening a physical space for business or service to the public," including "limiting occupancy to provide for social distancing, requiring services to be performed only on an appointment basis," "changing the format of service" and "requiring employees and customers to wear face coverings," as a partial suspension due to the order.6 The United States told the District Court that the Notice itself acknowledges a partial suspension where the employer "was required to suspend certain operations for certain purposes," and told the Ninth Circuit that the comparable-operations exclusion reaches only an employer that "could nonetheless, with telework, 'continue operations comparable to its operations prior to the closure' but chooses not to."7 The District Court read Q&A-14 the same way: the excluded employer is one that "chooses not to" continue and is "not being ordered to do so."8 On every one of those formulations the ground presupposes the absence of a command. The standing duties supply the command in every State and in every quarter.
The Service's sentence and the record's answer
The sixth of the fourteen grounds on which the Service's letters and examination reports decide the suspension question rests on Q&A-14. In the form the letters give it:
The employer's measures were voluntary (Q&A-14).
Question 14 of the Notice asks: "If an employer voluntarily suspends operation of a trade or business or voluntarily reduces hours due to COVID-19, but the suspension or reduction in hours is not due to a governmental order, may the employer qualify as an eligible employer solely on the basis of the voluntary suspension or reduction in hours?" The answer is one sentence: "No. An employer that voluntarily suspends operation of a trade or business or voluntarily reduces hours due to COVID-19 is not eligible for the employee retention credit on the basis of a full or partial suspension of its operations."9
The ground presupposes that no governmental command reached the employer, and no instrument in the Library fits that description. Every instrument the Library records carries an operative clause with the force of law and, in its record, its enforcement provision: the fines and confinement of the Texas Disaster Act recited in Executive Order GA-14 of March 31, 2020, the gross misdemeanor of Washington's Proclamation 20-57 (Ex. SEC-20-031), the license conditions of the alcohol and gaming regulators (Ex. AGY-ST-ALCOHOL-051, Ex. AGY-ST-GAMING-RACING-002), the conditions of Medicare participation (Ex. FED-092, Ex. FED-094), the civil penalties of the occupational-safety standards, federal (Ex. FED-080), Virginia's 16VAC25-220 (permanent from January 27, 2021) and California's 8 C.C.R. § 3205 (readopted June 17, 2021), and the criminal penalties of 42 U.S.C. § 271 that stand behind the federal conveyance order (Ex. FED-020). Where a guidance document appears in the record, an order incorporated it by reference and gave it the order's force, as GA-14 incorporated the federal critical-infrastructure list (Ex. SEC-07-001) and Executive Order 13917 directed the enforcement of the CDC-OSHA meat-processing guidance (Ex. SEC-20-001, Ex. SEC-20-028).10 A measure required by an order enforced by fine, license revocation, exclusion from Medicare or prosecution is not a voluntary measure. Applied to the instruments in this record, the ground has nothing to attach to.
Tri-State decided the point on the pleadings. The United States argued that the hospital would have taken its protective steps regardless of the Governor's proclamation; the court held that "the required protocols and procedures to comply with the Proclamation" were caused by the order and that "[s]ick patients and employees alone did not require additional protocols."11
Q&A-14: its premise and its place in the Notice
The Notice could give no example
Q&A-14 carries no example. It is the only question in Section III.D of the Notice without one, and the absence is telling: the Notice could describe no employer in 2020 whose pandemic measures were untouched by an order.12
The premise: no order in the causal chain
The question's own words fix its premise. The suspension it addresses is one that "is not due to a governmental order." The answer's operative phrase is "due to COVID-19": an employer that closes because of the disease as such, with no governmental command in the picture. The Notice contrasts that employer with every other employer Section III.D describes: the employer whose operations are closed by order (Q&A-10 and Q&A-11), whose supplier is closed (Q&A-12), whose workplace is closed (Q&A-15 and Q&A-16), whose workplace is closed for some purposes and open for others (Q&A-17), whose reopening is conditioned on modifications (Q&A-18), whose hours are cut by a health-department cleaning order (Q&A-19), and whose operations are suspended in some jurisdictions and not others (Q&A-20).13 In each of those, an order is in the causal chain and the Notice finds a suspension. Q&A-14 is the residual category for a closure with no order behind it. It is not a rule that an order-driven change becomes voluntary when the owner describes it in the vocabulary of choice.
The Notice's own definition of an order sharpens the point. Q&A-10 lists "orders, proclamations, or decrees from the Federal government or any State or local government" that limit commerce, travel or group meetings, and it distinguishes them from a mayor's press-conference statement encouraging distancing, which "is not an order limiting commerce, travel, or group meetings."14 The line the Notice draws is between a command with legal effect and a statement without one. A statute that says "shall," a rule with a penalty for its violation, an executive order with "the force and effect of law" and a health-officer order backed by a misdemeanor all fall on the command side of that line. The Notice never says that a command must issue from an executive rather than a legislature, or that a command in force before the pandemic does not count when the pandemic gave it content. The United States describes the qualifying instruments in the same words:
orders, proclamations, or decrees from the Federal government or any State or local government
Doc. 44 at 12
The Notice treats mandated modifications as suspensions
Section III.D is built on the proposition that an order which changes how a business operates suspends part of its operation. Q&A-11 states that a business permitted to remain open "may, nonetheless, be considered to have a partial suspension of its operations if a governmental order requires the business to close for a period of time during normal working hours."15 Q&A-17 states that where operations "are subject to modification due to a governmental order (for example, to satisfy distancing requirements), such a modification of operations is considered to be a partial suspension of business operations due to a governmental order" where it has more than a nominal effect.16 Q&A-18 identifies the modifications the Service had in mind: "those required by a governmental order as a condition of reopening a physical space for business or service to the public," including occupancy limits, appointment-only service, format changes and face-covering requirements for employees and customers.17 Q&A-19 finds a partial suspension where a local health department's deep-cleaning order caused a food processor to cut five hours from a twenty-four-hour day.18 Example 2 of Q&A-17 finds a restaurant "partially suspended" while a spacing constraint on indoor tables remained, "even though Employer F resumed all categories of its business operations."19
Those passages are the Notice's acknowledgment that compliance with an operating condition is a suspension due to the order that imposed it. The United States has litigated on the same footing. Describing Q&A-15, which its brief calls FAQ 15, it told the District Court that
the IRS qualified this response, acknowledging that an employer could be considered to have a partial suspension due to the governmental order if it was required to suspend certain operations for certain purposes
Doc. 44 at 15
and it told the same court that "employees having to wear face masks may impact business operations" and that "orders that were otherwise directed at business operations (operational hours, space, etc.)" are considered.20 A distancing plan, an occupancy cap, a screening station, a face-covering rule and a sanitation schedule are the modifications Q&A-18 lists. Where an order, a statute or a rule required them, the Notice's own architecture places the employer in Q&A-17, not in Q&A-14.
What the United States and the District Court said Q&A-14 means
The United States described Q&A-14 as Congress's own line:
Thus, Congress, and not the IRS, has decided that businesses that have voluntarily suspended their own operations are not eligible for the credit (FAQ 14).
Doc. 44 at 14-15
and, in the same brief, that "Congress, not the IRS, determined, for example, that a governmental order had to suspend an eligible employer's business operations and that a voluntary suspension of business operations also wouldn't qualify."21 The District Court held that Q&A-14 "comport[s] with the plain text of the statute" because "[a] business voluntarily suspending its own operations has not been suspended due to orders from an appropriate governmental authority but rather has suspended operations of its own volition," and read the comparable-operations rule as the same idea: "if a business has the capability to continue its operations in a modified manner but chooses not to, it is voluntarily suspending its own operations, not being ordered to do so."22 The Ninth Circuit brief puts the exclusion the same way; it reaches an employer that
could nonetheless, with telework, 'continue operations comparable to its operations prior to the closure' but chooses not to
Br. for Appellees at 42
Every one of those formulations turns on the absence of a command: "not being ordered to do so," "of its own volition," "chooses not to." Each is a statement about causation, and each is satisfied against the ground the moment a command is shown. The United States is held to that definition. An employer that reorganized its floor because a statute and an order required a safe and healthful workplace with distancing, screening and face coverings was "being ordered to do so." The standing-duty layer supplies that showing in every jurisdiction.
The statutory test is objective but-for causation, and the employer's characterization is not an element
"Due to" means "because of"
The Suspension Clause is identical in every enactment: an eligible employer is one for which "the operation of the trade or business ... is fully or partially suspended during the calendar quarter due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes) due to the coronavirus disease 2019 (COVID-19)."23 In Tri-State the United States agreed that "the plain meaning of 'due to' is 'because of,'" and the court held the meaning "plain and unambiguous."24 Applying Burrage, Gross and Thomas v. CalPortland, the court held that "'due to' requires 'but-for' causation" and that the United States' "proximate, independent, and sufficient cause" formulation "improperly adds words into the statute."25 The United States has since told the Western District of Michigan:26
The statute does not define order, partial suspension, or the causation requirement.
Defendant's Opposed Motion to Stay Case at 3, County of Barry v. United States, No. 1:25-cv-01099 (W.D. Mich. Sept. 4, 2026), ECF No. 21
The Supreme Court's rule fills that space: an undefined causal phrase takes its ordinary meaning, and "because of" imposes "a requirement of actual causality" satisfied by proof that the result "would not have occurred" in the absence of the cause.27 The Court has accepted that but-for causation "can be a sweeping standard" with "multiple but-for causes," and refused the Government's request to loosen a causation phrase for policy reasons.28 Breadth is the consequence of the words Congress chose.
The clause has no intent element
The clause asks two objective questions: whether the operation of the trade or business was fully or partially suspended, and whether that suspension was because of orders limiting commerce, travel or group meetings. It asks nothing about the employer's state of mind. Congress knows how to write an intent or motive element into the Code when it wants one, and it wrote none here. The word "voluntarily" appears in the Notice; it does not appear in the statute, and the Notice, by the United States' own account, binds no one:
The Notice ... lacks the force of law. ... [It] does not require [the plaintiff] or its clients to do anything or prevent them from doing anything.
Doc. 44 at 19
"Whether Notice 2021-20 exists or not," the United States added, "the statute will control whether a refund is warranted," and the District Court held that "the Notice carries no force of law and is entitled to no deference."29 The counterfactual the clause poses is therefore objective: whether the law would have required the change the employer made had the orders not issued. If no law would have required it, the change was made because of the orders. The answer does not turn on whether the owner, asked years later, describes the change as a choice, and it does not turn on whether the owner could name the instrument that compelled it. Tri-State applied the test exactly that way: the hospital "was required to make these changes to ensure compliance with the Proclamation," it alleged the changes "were not voluntary," and the court held that it "alleged sufficient facts that the interruption was caused by the Proclamation."30 The United States' argument that the disease, not the orders, caused the changes failed because "the required protocols and procedures to comply with the Proclamation" were caused by the Proclamation: "Sick patients and employees alone did not require additional protocols," and on the United States' reading "there are not many businesses or any business that would be eligible under the ERC at all."31
A lay characterization of a legal question is not evidence of it
Whether a suspension was "due to orders" is a question of law applied to facts. A witness's opinion on it is admissible, if at all, only within Rule 701 of the Federal Rules of Evidence, which limits lay opinion to one "rationally based on the witness's perception," "helpful to clearly understanding the witness's testimony or to determining a fact in issue," and "not based on scientific, technical, or other specialized knowledge."32 Rule 704(a) provides that an opinion "is not objectionable just because it embraces an ultimate issue," and the advisory committee's note, as the circuits read it, makes Rule 701 "stand ready to exclude opinions phrased in terms of inadequately explored legal criteria."33 The circuits apply the rule uniformly. The Ninth Circuit: "The lay witness may not, however, testify as to a legal conclusion, such as the correct interpretation of a contract"; a union officer's opinion on "the correct construction of the collective bargaining agreement ... is an inadmissible legal conclusion"; the "reasonableness and foreseeability" of reliance "were matters of law for the court's determination"; and "an expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law," because "[r]esolving doubtful questions of law is the distinct and exclusive province of the trial judge."34 The Sixth Circuit, on a witness's opinion that a plaintiff had been "discriminated against": "The problem with testimony containing a legal conclusion is in conveying the witness' unexpressed, and perhaps erroneous, legal standards to the jury."35 The Second Circuit: "This circuit is in accord with other circuits in requiring exclusion of expert testimony that expresses a legal conclusion," and "[e]ven if a jury were not misled into adopting outright a legal conclusion proffered by an expert witness, the testimony would remain objectionable by communicating a legal standard—explicit or implicit—to the jury"; opinions that "drew directly upon the language of the statute" were "legal conclusions" beyond the witness's province.36 The D.C. Circuit: "Expert testimony that consists of legal conclusions cannot properly assist the trier of fact."37
The principle governs the weight of the word "voluntary" wherever it appears. When an owner says the business "chose" to distance its floor, screen its workers or close its dining room "for safety," the fact conveyed is the conduct and its purpose. The legal category, whether that conduct was "due to orders" within the Suspension Clause, is not a matter within the owner's perception, and an owner who did not know that Health and Safety Code chapter 81, Labor Code section 411.103 and Executive Order GA-29 commanded the conduct is a witness "conveying ... unexpressed, and perhaps erroneous, legal standards." The principle is stated here from the law, and it needs no owner's words to state it.
The Service's own doctrine: substance, not labels
The Service litigates substance over form in every corner of the Code, and the Supreme Court's formulations are its stock citations. "The incidence of taxation depends upon the substance of a transaction," and "[t]o permit the true nature of a transaction to be disguised by mere formalisms ... would seriously impair the effective administration of the tax policies of Congress."38 "In the field of taxation, administrators of the laws, and the courts, are concerned with substance and realities, and formal written documents are not rigidly binding."39 "In applying this doctrine of substance over form, the Court has looked to the objective economic realities of a transaction rather than to the particular form the parties employed," and has "never regarded 'the simple expedient of drawing up papers' ... as controlling for tax purposes when the objective economic realities are to the contrary."40 A rule of decision under which a taxpayer's lay label controls the legal character of its conduct is the opposite of that doctrine. The Service cannot insist on objective reality when a label would help the taxpayer and on the label when the label would help the Service. The objective reality here is a statute that said "shall," an order that said "shall operate at no more than 50 percent," and a penalty for disobedience.
Compliance under threat of penalty is not voluntary
The law has a settled name for conduct performed because a sanction would follow refusal, and the name is not "voluntary." Justice Holmes, for a unanimous Court, held that a railroad's application for a certificate under statutes that "impose severe penalties" was made "under duress," and explained why the State's characterization of the act as voluntary could not stand: "as conduct under duress involves a choice, it always would be possible for a State to impose an unconstitutional burden by the threat of penalties worse than it in case of a failure to accept it, and then to declare the acceptance voluntary."41 Six years earlier the same Justice had written that "when ... the State has a more summary remedy, such as distress, and the party indicates by protest that he is yielding to what he cannot prevent, courts sometimes perhaps have been a little too slow to recognize the implied duress under which payment is made," and that a party facing forfeiture of its right to do business "is entitled to assert his supposed right on reasonably equal terms."42 The rule is older still: where a company could continue its business only by submitting to an official's exaction, "[t]he parties were not on equal terms. The appellant had no choice. The only alternative was to submit to an illegal exaction, or discontinue its business. ... Money paid or other value parted with, under such pressure, has never been regarded as a voluntary act."43 The modern Court applies the same understanding to compliance with a threatened law: a party who "eliminated the imminent threat of harm by simply not doing what he claimed the right to do" has not acted freely, "because the threat-eliminating behavior was effectively coerced," and "where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat."44
Those holdings settle the vocabulary. An employer that distanced its floor because Government Code section 418.173 made non-compliance an offense, that screened its workers because Labor Code section 411.103 said "shall," and that masked its staff because Executive Order GA-29 said "shall wear a face covering ... when inside a commercial entity" was "yielding to what [it could] not prevent." That the employer had, in the abstract, the option of disobeying and paying the fine, losing its license or answering for negligence does not make its compliance a choice in the legal sense; "conduct under duress involves a choice," and the law refuses to let the party that imposed the penalty "declare the acceptance voluntary." Compliance with a compulsory order is compliance whether or not the actor calls it a choice.
Three layers, one command
Three layers of law bound every employer during the six quarters. A statute, regulation or rule that commands conduct (a "shall," a "must," an offense for non-compliance) is an "order from an appropriate governmental authority" under the Suspension Clause on the same footing as an executive or health-officer order; a legislature, a health department, a labor department and an occupational-safety agency are each an appropriate governmental authority; and the source of the command is irrelevant, because the statute says nothing about it. The first layer is the emergency orders themselves, which permitted operation only on conditions and incorporated the health authorities' protocols by reference. The second is the standing law: the communicable-disease control acts, the emergency-management acts' force-of-law and penalty provisions, the workplace-safety duties (federal and State) and the sanitary codes. The third is the liability shields enacted in 2020 and 2021, which protected only the business that complied with governmental standards, guidance or protocols and thereby declared compliance the standard of care. The standing duty was the vessel and the pandemic directives filled it. A safe-workplace statute had no COVID-19 content until the health authorities said what a safe workplace required during an airborne pandemic; from that moment, distancing, screening, sanitation, ventilation and face coverings were the statute's requirement, taken because governmental directives defined the duty and not otherwise. That is but-for causation on Tri-State's terms.
Texas states the duties in terms and is the worked example below. Arizona and California are set beside it because the three States together show the three forms the framework takes: a State without its own occupational-safety plan, in which the federal general duty clause supplies the workplace layer (Texas); a State-plan State that adopted no COVID-19 standard of its own but wrote CDC, OSHA and State health-department guidance into mandatory business policies (Arizona); and a State-plan State that wrote the duty into an emergency temporary standard with its own text (California). The table at the end of this page supplies every other jurisdiction's equivalents.
Texas, the worked example
Texas states the duty on every person in a sentence that predates the pandemic by three decades. Section 81.002 of the Health and Safety Code, "Responsibility of State and Public," provides: "The state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease."45 The Commissioner of State Health Services invoked that section when he declared a public health disaster on March 19, 2020, and the Department's release directed that "[p]eople, businesses and communities should immediately undertake hygiene, cleanliness and sanitation practices."46 The practices in the release are recommendations; the duty they implement is a command, and the same day the Governor gave the release's gathering and closure points the force of law. Behind section 81.002 stand control measures that "may be imposed on an individual, animal, place, or object," a health authority's power to order any individual, or every member of a group, "to implement control measures that are reasonable and necessary," a written-order power in a public health disaster to "require a person who owns or controls property to impose control measures that are technically feasible to disinfect or decontaminate the property," a Class B misdemeanor for refusing control measures and a third-degree felony for disobeying a published order in an area quarantine.47
The Disaster Act gave the Governor's orders "the force and effect of law," authorized control of "the movement of persons and the occupancy of premises," and made failure to comply with an order adopted under the State emergency management plan an offense punishable by a fine of up to $1,000 and confinement of up to 180 days, a penalty every general order recited. The Eighth Court of Appeals held that GA-32's "declarations regarding occupancy, the size of group meetings, activities that person may engage in, and the conduct of business ... become state law," and the Fifth Circuit, vacating a restraining order against a Texas emergency order in April 2020, held that "when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some 'real or substantial relation' to the public health crisis."48 The Labor Code commanded that "Each employer shall" provide "a place of employment that is reasonably safe and healthful for employees," use "methods of sanitation and hygiene, that are reasonably necessary to protect the life, health, and safety of the employer's employees," and "take all other actions reasonably necessary to make the employment and place of employment safe."49 And the Legislature, in the Pandemic Liability Protection Act, fixed the standard of care for every action commenced on or after March 13, 2020 as compliance: a person is not liable for exposure unless the claimant establishes that it "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease."50
The reopening orders permitted operation only on conditions with the force of law. GA-18 conditioned reopening on "up to 25 percent" of listed occupancy; GA-28 ordered that "Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy of the establishment" and that "People shall not visit bars"; GA-29 ordered that "Every person in Texas shall wear a face covering ... when inside a commercial entity" from July 3, 2020 to March 10, 2021; GA-30 ordered that people "shall not be in groups larger than 10 and shall maintain six feet of social distancing"; GA-32 set "no more than 75 percent," rolled every business to "only 50 percent" in high-hospitalization areas, and provided that for outdoor areas "social distancing and other protocols must be followed."51 A Texas employer that capped its occupancy, distanced its floor, screened its workers and masked its staff between March 2020 and September 2021 was doing what chapter 81, section 411.103, GA-28, GA-29, GA-32 and section 148.003 required of it. It was not choosing.
Layer one: the orders' operating conditions and the protocols they incorporated
The reopening orders did not restore operation; they permitted it on conditions, and their verbs are commands. Texas: "Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy." Arizona: from May 12, 2020 every business that "serves the public or is an employer shall develop, establish and implement policies based on guidance from the CDC, Department of Labor, Occupational Safety and Health Administration (OSHA) and ADHS"; from June 17, 2020 "[b]usinesses shall assist ... by updating and enforcing written policies ... that adopt guidance from the CDC, Department of Labor, ... OSHA and ADHS," and "[t]his provision shall be enforced by law enforcement and regulatory agencies that have jurisdiction over the business"; from June 29, 2020 the Department of Health Services was directed to take "immediate enforcement action against any business that fails to follow this Executive Order or any guidance issued by the Arizona Department of Health Services."52 California: the State Public Health Officer's order of May 7, 2020 permitted sectors to "reopen with certain modifications" designated on the State's site and required Californians engaging with reopened businesses to "continue at all times to practice physical distancing"; the Blueprint order of August 28, 2020 kept "all CDPH guidance" applicable statewide; and the industry guidance those orders designated used "must": "[e]mployers must provide face coverings to workers," "[e]mployers must provide and ensure workers use all required protective equipment," and "[t]he retail industry must comply with all Cal/OSHA standards."53 Washington: "No employer may operate, allow a customer to enter a business, conduct business, or employ employees unless the employer ... complies with all public health authority orders and directives." Virginia: businesses "may reopen, provided such businesses comply with the Guidelines for All Business Sectors," and the Guidelines provide that "Establishments must either implement the following mandatory requirements or close." Connecticut: "Every workplace in the State of Connecticut shall take additional protective measures." New York: businesses "must be operated subject to the guidance promulgated by the Department of Health." Iowa: a restaurant "may reopen ... but only to the extent that it complies with the following requirements." Kansas: businesses "can open if they comply with the following." Pennsylvania: in-person operations "provided that the businesses fully comply with all substantive aspects of" the safety orders. Vermont: every operation "shall only operate in accordance with ... ACCD Work Safe Guidance."54 A measure the Service calls "beyond the order" was, in every State, the order's own condition of operating.
Incorporation by reference is how an order gives legal effect to a protocol whose own verb is "should." Tri-State is the judicial statement of the mechanism. Washington's Proclamation 20-24.2 required the hospital to follow the CDC's interim infection-prevention recommendations and imposed "over 30 separate requirements"; the court held that "[t]he Proclamation provided the guidance and procedures that the businesses were required to adhere to and follow to be compliant with the order," and that the protocols the hospital ran to comply with it were caused by the Proclamation, not by the disease.55 The testing of employees, the physical distancing and the other restrictions the hospital imposed were the content of a CDC recommendation; they were compulsory because a governor's proclamation made them so. Minnesota's reopening guidance said the same of itself: "Unless clearly indicated that an action included in the guidance is recommended, businesses should understand that the action is required." Connecticut's Sector Rules "shall constitute legally binding guidance."56 The same structure appears in every State's reopening regime.
Layer two: the standing statutes
The communicable-disease control acts
Every one of the fifty-one jurisdictions had, before March 2020 and through September 30, 2021, a communicable-disease control statute that commanded control measures on persons and premises, commanded obedience and punished refusal. Texas's chapter 81 is set out above. Arizona gave its Department of Health Services "primary jurisdiction, responsibility and authority" over the emergency and commanded that "[l]aw enforcement officials of this state and the national guard shall enforce orders issued by the governor," required every isolated or quarantined person to "comply with the department's or local health authority's rules and orders," and made violation of a board of health's rule, order or measure a class 3 misdemeanor.57 California authorized its Department of Public Health to "quarantine, isolate, inspect, and disinfect persons, animals, houses, rooms, other property, places, cities, or localities," commanded each local health officer to "take measures as may be necessary to prevent the spread of the disease," and made violation of a quarantine or disinfection order a misdemeanor with "a separate offense for each day that the violation continued."58 North Carolina: "All persons shall comply with control measures," "person" including a corporation, with the CDC's guidelines made "the required control measures" by rule and a misdemeanor punishable by up to two years for refusal. Ohio: no person "having charge of a ... place of public accommodation, amusement, resort, or trade" may "negligently fail to take reasonable measures to protect the public from exposure to the contagion," a duty on the statute books since 1974. Nebraska: "Each person within this state shall conduct himself or herself and keep and manage his or her affairs and property in ways that will reasonably assist" the State and the public in meeting disasters and emergencies. New Hampshire: cases and contacts "who work in sensitive occupations, such as healthcare, food service, and child care ... shall be excluded or restricted from certain activities," with a misdemeanor for a natural person and "a felony if any other person." Washington: "Members of the general public shall cooperate with" public health authorities "in their investigation and control of cases" and with the "[i]mplementation of infection control measures."59 Where the statute commands officials rather than persons, as in Kentucky, Maryland, Wisconsin, Montana and South Carolina, it is the machinery that made the orders compulsory, and the table records it as that.60 The second column of the table carries every jurisdiction.
The emergency acts: force of law and the offense of disobedience
Every one of the fifty-one had an offense that reached violation of the pandemic orders, in forty through the emergency act and in eleven through the health code or municipal law where the emergency act carried no penalty. Texas's section 418.173 is set out above. Arizona's A.R.S. § 26-317 makes knowing failure "to obey any lawful order or regulation issued as provided in this chapter" a class 1 misdemeanor; a Scottsdale restaurant owner was arrested under it on April 11, 2020 for on-site dining in violation of the Governor's order, and the Ninth Circuit held the arrest supported by probable cause.61 California's Government Code provides that the Governor's orders "shall have the force and effect of law" and that any person "who refuses or willfully neglects to obey any lawful order or regulation promulgated or issued as provided in this chapter, shall be guilty of a misdemeanor"; the Court of Appeal held the Emergency Services Act a valid delegation and the orders quasi-legislative acts with the force of law.62 Connecticut's emergency act makes disobedience a class D felony and Washington's a gross misdemeanor, and the courts of Texas, Massachusetts and Kentucky and the Ninth Circuit held the orders law.63 The eleven jurisdictions whose emergency act carried no general offense and whose health code or municipal law supplied it are Alaska, Arkansas, Idaho, Illinois, Kansas from June 9, 2020, Nebraska, New Mexico, Nevada, Oklahoma, South Dakota and Wyoming; Pennsylvania charged order violations under its administrative code and its Disease Prevention and Control Law.64 The penalty under the control acts is a misdemeanor in every State and more in Connecticut ($1,000 or a year for each offense), Louisiana (up to two years), Mississippi (a felony), Virginia (a civil penalty of $25,000 per violation per day) and Vermont ($10,000 per violation per day and criminal fines to $25,000).65 An order with the force of law, disobedience of which is a crime, is not a suggestion an employer was free to decline.
The workplace-safety duty: federal and State
Section 5(a)(1) of the Occupational Safety and Health Act binds every private employer in the United States: "Each employer ... shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees," and section 5(a)(2) requires compliance with the standards promulgated under the Act.66 Section 17 attaches the penalties: a civil penalty for a serious violation, a civil penalty of up to $70,000 (as printed in the 2020 edition of the Code, adjusted for inflation by regulation) for a willful or repeated violation, and criminal punishment for a willful violation that causes an employee's death.67 Section 18 authorizes the States to administer approved plans whose standards must be "at least as effective" as the federal ones, and in those States the State agency enforces the same duty.68 The Service's own Office of Chief Counsel has recited the clause as a command: section 654(a)(1) "requires each employer to furnish to each of his employees employment and a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm," and "the OSH Act requires employers to comply with OSHA's health and safety standards."69
OSHA told every employer in March 2020 that the clause governed the pandemic. Its first guidance stated that the document itself "is advisory in nature and informational in content" and "is not a standard or a regulation," and in the same paragraph that "employers must comply with safety and health standards and regulations issued and enforced either by OSHA or by an OSHA-approved State Plan" and that "the OSH Act's General Duty Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm."70 The January 2021 guidance repeated both sentences.71 The distinction OSHA drew is the honesty rule of this analysis: the guidance recommends; the statute commands; and the guidance is what tells the employer what the recognized hazard is and what feasible means abate it. The Congressional Research Service described the clause the same way in September 2020: it "acts as a catch-all provision that promotes workplace safety," and under the D.C. Circuit's reading "if an employer knows that a specific standard will not protect his workers against a particular hazard, his duty under section 5(a)(1) will not be discharged no matter how faithfully he observes that standard."72
Forty-seven States state the duty in their own statutes beside the federal clause. Texas Labor Code section 411.103 is mandatory in every clause. Arizona's A.R.S. § 23-403 provides that "[e]ach employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards" and "shall comply with occupational safety and health standards and all regulations and orders issued pursuant to this article," with civil penalties at the federal maxima and a class 6 felony for a knowing violation causing death.73 California's Labor Code provides that "[e]very employer shall furnish employment and a place of employment that is safe and healthful for the employees therein," "shall do every other thing reasonably necessary to protect the life, safety, and health of employees," and that "[n]o employer shall require, or permit any employee to go or be in any employment or place of employment which is not safe and healthful"; Title 8, section 3203 requires a written injury and illness prevention program with "procedures for identifying and evaluating work place hazards"; and Cal/OSHA stated on July 16, 2020 that "[e]xisting regulations require employers to implement effective measures to protect employees from worksite hazards, including recognized health hazards such as COVID-19."74 Alabama commands every employer to "do everything reasonably necessary," including "conditions and methods of sanitation and hygiene"; Louisiana, to keep the workplace "reasonably safe" and "do every other thing reasonably necessary"; New Jersey, to provide a workplace "reasonably safe and healthful ... including methods of sanitation and hygiene"; West Virginia, a workplace "reasonably safe," "safe" including "conditions and methods of sanitation and hygiene reasonably necessary for the protection of ... employees or the public"; Wisconsin's safe-place statute, a place "safe for employees therein and for frequenters thereof"; Virginia, "a place of employment that is free from recognized hazards"; Alaska, "everything necessary to protect the life, health, and safety of employees"; Montana, "the use of health and safety devices ... including but not limited to air masks"; New Hampshire, "safe employment."75 Colorado, Florida and Idaho have no State general-duty statute for private employers and Oklahoma's reaches public employers only; the federal clause alone supplies the duty there.
The COVID-19 workplace rules with their own force of law
Where a State wrote the pandemic duty into a rule, the rule is an order in terms, and twenty-eight jurisdictions did so. Virginia adopted the first emergency temporary standard in the country, 16VAC25-220, on July 27, 2020, made it permanent on January 27, 2021 and amended it on September 8, 2021, in force through the third quarter of 2021.76 Michigan's MIOSHA Emergency Rules of October 14, 2020, re-issued April 13, 2021 and amended May 24, 2021, required every employer to prepare and implement a written preparedness and response plan, and MIOSHA issued citations under them against named employers.77 California's COVID-19 Prevention Emergency Temporary Standards, 8 C.C.R. §§ 3205 to 3205.4, in force from November 30, 2020 and readopted June 17, 2021, provided that "[e]mployers shall establish, implement, and maintain an effective, written COVID-19 Prevention Program."78 Washington's WAC 296-800-14035 provided from May 26, 2020 that "Employers must comply with all conditions for operation required by emergency proclamation"; Utah's emergency rule of November 9, 2020 provided that "every employee shall be required to wear a face mask while that employee is at work"; and Oregon OSHA's temporary rule of November 16, 2020 and its successor OAR 437-001-0744, Kentucky's 803 KAR 2:330E, Illinois's emergency amendment adding section 690.50 to 77 Ill. Adm. Code 690, New York's HERO Act and its airborne infectious disease standard, Maryland's COMAR 09.12.29, the District of Columbia's workplace-safety acts, Pennsylvania's Worker Safety Order of April 15, 2020, Connecticut's Safe Workplace Rules, New Hampshire's Universal Guidelines, Rhode Island's Safe Activities regulation, Massachusetts's Mandatory Safety Standards, Colorado's and North Dakota's public health orders on employers and New Jersey's N.J.A.C. 12:70 each carried the same character.79 The federal Healthcare Emergency Temporary Standard, 29 C.F.R. § 1910.502, took effect June 21, 2021 and was adopted by the State plans, among them Alaska, Hawaii, Iowa, Kentucky, Maryland, Minnesota, North Carolina and Vermont, for the whole of the third quarter of 2021.80 Every one of these is a rule with a penalty, issued by an occupational-safety agency or a health authority with power over the subject; each is an order from an appropriate governmental authority. The twenty-eight jurisdictions are Alaska, California, Colorado, Connecticut, the District of Columbia, Hawaii, Iowa, Illinois, Kentucky, Massachusetts, Maryland, Michigan, Minnesota, North Carolina, North Dakota, New Hampshire, New Jersey, New Mexico, Nevada, New York, Oregon, Pennsylvania, Rhode Island, Texas, Utah, Virginia, Vermont and Washington.
OSHA enforcement in fact
OSHA enforced the general duty clause against COVID-19 hazards from the first weeks. Its Interim Enforcement Response Plan of April 13, 2020 attached "a sample alleged violation description for a citation under the general duty clause, Section 5(a)(1)," and instructed compliance officers that where "deficiencies not addressed by OSHA standards or regulations are discovered in the employer's preparedness for controlling high to very high occupational exposure risk for SARS-CoV-2, and guidance is available (e.g., CDC), follow the FOM guidance for enforcing the general duty clause."81 On September 10, 2020 the Department of Labor cited Smithfield Packaged Meats Corp. in Sioux Falls "for one violation of the general duty clause for failing to provide a workplace free from recognized hazards that can cause death or serious harm," proposing "$13,494, the maximum allowed by law," after 1,294 workers contracted the disease and four died; on September 11, 2020 it cited JBS Foods Inc. in Greeley "for a violation of the general duty clause," proposing $15,615, "the maximum allowed."82 By December 31, 2020 OSHA had issued citations from 300 inspections with proposed penalties of $3,930,381; its enforcement table records 302 citation rows in 2020 and 440 in 2021; and the Occupational Safety and Health Review Commission affirmed a willful general-duty violation against a tax office with a penalty of $95,500.83 The National Emphasis Program of March 12, 2021, its revision of July 7, 2021 and the updated enforcement plan of the same date continued the program, and OSHA's own compilation of the standards most often cited in COVID-19 inspections (respiratory protection, personal protective equipment, recordkeeping, sanitation) documents the duties employers were answering.84 Two district courts described the regime in 2020. The Eastern District of New York: OSHA "has not issued a standard specific to COVID-19, relying instead on optional guidance and existing standards for, inter alia, personal protective equipment, general environmental controls, and toxic and hazardous substances, as well as employers' obligations under the OSH Act's general duty clause," and had by November 2020 "opened over 1,000 federal inspections, and issued around 150 citations."85 The Western District of Missouri: the question whether a meat plant complied with the CDC-OSHA Joint Guidance "goes to the heart of OSHA's special competence," the court "cannot ignore the USDA's and OSHA's authority over compliance with the Joint Guidance," and "the issue of Smithfield's compliance with OSHA's guidelines and regulations falls squarely within OSHA/USDA's jurisdiction."86 A duty an agency enforces with citations and maximum penalties is a legal obligation, not a preference.
The sanitary codes
Every premises open to the public operated under a standing sanitary duty enforced by summary closure. Texas declares a public health nuisance any "place of business ... that is not constantly maintained in a sanitary condition" and any "object, place, or condition that is a possible and probable medium of disease transmission to or between humans," makes each day of a continuing violation a separate offense, and commands the Department to "suspend the license ... or order the immediate closing" of a food establishment whose violation "creates an immediate threat to the health and safety of the public."87 Arizona declares the same nuisances and puts the owner on a twenty-four-hour abatement clock; California's Retail Food Code authorizes an enforcement officer to "temporarily suspend the permit and order the food facility ... immediately closed" for any imminent health hazard.88 These provisions are the channel through which environmental-health officers enforced dine-in closures, capacity limits and protocols against restaurants, bars and markets, and they existed before the pandemic.
Layer three: the liability shields as legislative statements of the standard of care
The legislatures said what the standard of care was, and they said it in statutes that protected only the business that met it. The Congressional Research Service summarized the pattern in September 2020: "Most protections provided to date are conditioned upon the businesses' substantial compliance with the applicable federal, state, or local guidelines."89 Nineteen legislatures enacted general business shields conditioned on compliance with governmental standards, guidance, orders or protocols, fifteen of them reaching back to the first days of the emergency. Texas chose "standards, guidance, or protocols," not "orders," and did not ask whether the protocol's own verb was "shall" or "should." Kansas immunized a business only "if such person was acting pursuant to and in substantial compliance with public health directives," a defined term that reached State statutes, rules and executive orders and the federal rules of CDC and OSHA, retroactive to March 12, 2020.90 Michigan wrote into its occupational-safety act that "an employer is not liable under this act for an employee's exposure to COVID-19 if the employer was operating in compliance with all federal, state, and local statutes, rules, and regulations, executive orders, and agency orders related to COVID-19," retroactive to March 1, 2020.91 Arizona presumes good faith only for a business that "adopted and implemented reasonable policies related to the public health pandemic," retroactive to March 10, 2020.92 Iowa protected acts "in substantial compliance or ... consistent with any federal or state statute, regulation, order, or public health guidance related to COVID-19"; North Dakota, acts "in substantial compliance or ... consistent with a federal or state statute, regulation, or order related to COVID-19"; Nebraska, acts "in substantial compliance with any federal public health guidance"; Oklahoma, acts "in compliance or consistent with federal or state regulations, a Presidential or Gubernatorial Executive Order, or guidance applicable at the time"; Louisiana, a business that did not "fail[] to substantially comply with the applicable COVID-19 procedures established by the federal, state, or local agency which governs the business operations"; Florida, a defendant that "made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance"; Nevada, an entity "in substantial compliance with controlling health standards"; Alaska, a business "in substantial compliance with the applicable federal, state, and municipal laws and health mandates"; Alabama, an entity that "reasonably attempt[ed] to comply with the then applicable public health guidance"; Arkansas, a person "[s]ubstantially complying with health and safety directives or guidelines issued by the Governor, the Secretary of the Department of Health, the Centers for Disease Control and Prevention"; South Carolina, an entity that "reasonably adheres to public health guidance"; Mississippi, a person "who attempts in good faith to follow applicable public health guidance"; Kentucky, "an owner who follows any executive action to prevent the spread of COVID-19"; Wyoming, a person "who in good faith follows the instructions of a state, city, town or county health officer"; Montana, "a complete bar" for "reasonable measures consistent with a federal or state statute, regulation, order, or public health guidance."93 Illinois wrote the same standard into workers' compensation: the presumption that a front-line worker's infection arose from employment is rebutted where "the employer was engaging in and applying to the fullest extent possible or enforcing to the best of its ability industry-specific workplace sanitation, social distancing, and health and safety practices based on updated guidance issued by the Centers for Disease Control and Prevention or Illinois Department of Public Health."94
A second group of eleven States raised the culpability threshold to gross negligence or recklessness without a compliance clause: Georgia, Idaho, Indiana, Missouri (from August 28, 2021), North Carolina, Ohio, South Dakota, Tennessee, Utah, Wisconsin and West Virginia.95 In those States the orders' own penalties and the workplace-safety statutes remained the enforcement channel, and the courts measured gross negligence against the orders: the Georgia Court of Appeals, considering a facility that operated under an executive order requiring health-care facilities to "comply with emergency orders," held that the conduct alleged was not "the sort of events, such as inviting the public to a large indoor concert, that might demonstrate the total absence of even a slight amount of common sense that typifies gross negligence."96 Utah's shield preserved the Utah Occupational Safety and Health Act in terms.97 A third group of thirteen shielded health-care providers or emergency-management actors only, on compliance conditions: Connecticut, the District of Columbia, Hawaii, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Oregon, Rhode Island, Vermont and Virginia.98 And eight enacted none: California, where AB 1035 would have protected a small business only if it "implemented and abided by all applicable state and local health laws, regulations, and protocols" and died in committee, so that the standing rule that violation of "a statute, ordinance, or regulation of a public entity" is presumed negligence governed every pandemic order and standard; Colorado, where three bills conditioned on good-faith compliance were postponed; Delaware; Illinois; Minnesota; New Mexico, where a bill conditioned on compliance "with federal and state laws that provide requirements for mitigation" was never heard; Washington, where breach of a statute, ordinance or administrative rule is evidence of negligence; and Pennsylvania, whose Governor vetoed the shield on the stated ground that "[p]roviding immunity for a business that does not rigorously comply with public health orders does not ensure the safety of the public."99 In all four groups the premise is the same: compliance with the governmental health standards was the standard of care, and the business that departed from it stood exposed. The shield with a compliance clause states the standard; the shield without one leaves the orders and the safety statutes to enforce it; the veto refuses to protect the business that departs from it.
The honesty rule: a "should" is a recommendation until an instrument makes it compulsory
This analysis keeps the distinction the instruments drew and reads each on its own terms. The Texas orders illustrate both sides. GA-14 provided that "people and businesses should follow the Guidelines from the President and the CDC"; GA-18 provided that "people and businesses should follow the minimum standard health protocols recommended by DSHS"; GA-21 through GA-32 provided that every person, "including ... businesses," "should use good-faith efforts and available resources to follow the minimum standard health protocols recommended by DSHS"; GA-34 and GA-38 changed the verb to "strongly encouraged" from March 10, 2021; and the protocols themselves open with "the following are the minimum recommended health protocols for all businesses choosing to operate in Texas."100 Read exactly, in those clauses the protocols are recommendations. The same orders commanded occupancy, group size, distancing and face coverings with "shall," and GA-23's preamble stated that following the protocols "will mean compliance with the minimum standards for safely reopening."101 Arizona's business orders used "shall" for the policies and made the CDC, OSHA and ADHS guidance their required content; its customer-facing guidance used "should be followed."102 California's order of June 11, 2021 records the change of character in terms: from June 15, 2021 the industry guidance "will not be mandatory" while the face-covering, mega-event, school and child-care requirements remained commands.103 Eleven States converted their employer clauses to recommendations before the six quarters ended: Iowa, by proclamation of February 5, 2021; Arkansas on February 26, 2021; Mississippi on March 3, 2021; South Carolina on March 5, 2021; Texas on March 10, 2021; Arizona on March 25, 2021; Alabama on April 9, 2021; New Hampshire on May 8, 2021; Maryland on May 15, 2021; California and Illinois on June 11 and 15, 2021.104 After each of those dates the compulsion in that State rests on the standing statutes, the shield's condition and the federal layer, and the record says so.
A recommendation becomes compulsory through the instrument that incorporates it, and there are three such instruments in every State. First, the order that conditions permission to operate on the protocol: GA-32's "must be followed," Arizona's "shall develop, establish and implement policies based on guidance," California's "necessary modifications," Washington's Proclamation 20-24.2 in Tri-State, whose CDC recommendations became "the guidance and procedures that the businesses were required to adhere to and follow to be compliant with the order."105 Second, the liability shield's condition: Texas's section 148.003 turns on "standards, guidance, or protocols," Florida's on "health standards or guidance," Iowa's on "public health guidance," and a business that departed from the guidance stood outside the shield from the first day of the emergency.106 Third, the general duty clause and its State analogues: the clause requires abatement of a "recognized hazard" by feasible means, the guidance is the authoritative statement of what the hazard is and what abates it, and OSHA's enforcement plan instructed its officers to cite under section 5(a)(1) where "guidance is available (e.g., CDC)."107 The Service's own memorandum on OSHA communications, AM 2023-007, addressed only guidance documents, defined "communications" to exclude the COVID-19 emergency temporary standard, recited that section 654(a)(1) "requires" the safe workplace, and states of itself that it "may not be used or cited as precedent."108 Through any of the three channels, the recommendation is read as what it is, a recommendation, and its compulsory effect is traced to the instrument that gave it that effect. That is the honesty rule, and it costs nothing: in every State at least one of the three instruments was in force on every day of the six quarters.
The duties were enforced, and the courts treated the regime as law
OSHA cited under the general duty clause at "the maximum allowed by law"; Indiana's occupational-safety agency "required employers to demonstrate they were following both Centers for Disease Control business COVID guidelines as part of general duty and any guidance federal OSHA recommended"; Oregon OSHA issued 159 citations from more than 24,500 complaints; Michigan, Nevada and New Mexico cited and inspected under their own rules; Attorneys General in Minnesota, New Jersey and Vermont obtained injunctions and penalties; health officers in North Carolina, Alaska, Colorado, Montana and Louisville closed businesses by abatement order; and Connecticut, Kentucky, Louisiana and North Carolina made the business the party fined for an unmasked worker or patron.109 The courts treated the regime as law. The Supreme Court of Oklahoma described the orders as "Legislatively mandated in a health crisis" and "designed to control infections, and provide a safe and sanitary environment for Oklahomans."110 The Supreme Court of California, describing an employer's position in 2020, wrote that "employers allowed to continue operations during this time were subject to strict regulations designed to limit transmission of the virus," that the San Francisco health order "mandated specific health and safety precautions," and that employers "were required to: screen workers for symptoms daily upon arrival at the jobsite; maintain social distancing between workers except as strictly necessary for the work; remove any infected worker from the jobsite immediately and sanitize their work area; stagger trades to reduce worker density; provide workers with personal protective equipment ...; and provide ventilation in the work area to the extent possible," adding that "government health orders notified employers" of the foreseeability of transmission and that nothing exempted the employer "from the default duty to use due care in its operations."111 The Court of Appeal had already held that a wrongful-death action alleging that an employee "contracted COVID-19 at work because of defendants' failure to implement adequate safety measures" proceeds against the employer outside workers' compensation exclusivity.112 The Second Circuit described New York's reopening plan as guidance that "outlined 'minimum requirements' businesses needed to follow to remain open," held that warehouse workers' claims under Labor Law section 200 for breach of "the duty to protect the health and safety of employees" were live and "turn on questions of state tort law that are within the conventional experience of judges," and remanded them for adjudication.113 The Western District of Missouri treated the CDC-OSHA Joint Guidance as the measure of a meat plant's duty, found the plant's policies "consistent with the Joint Guidance," and deferred to OSHA's "authority over compliance with the Joint Guidance."114 The Eighth Circuit recited the federal directives that meat processors "continue operations consistent with the guidance" of CDC and OSHA and that the Secretary of Agriculture was "direct[ing] meat and poultry processors to utilize the guidance issued ... by CDC and OSHA ... to implement practices and protocols for staying operational," and remanded the estates' gross-negligence claims to State court, where the standard of care is measured; the Third Circuit returned nursing-home negligence claims for pandemic handling to State court because the PREP Act does not completely preempt them.115 The Fifth, Eighth and Ninth Circuits and the Supreme Courts of Kentucky, Massachusetts, New Mexico, Minnesota, Connecticut and Wisconsin upheld the orders or held them law.116
The negligence-per-se and evidence-of-negligence statutes give the orders their tort consequence directly: California presumes want of due care from violation of "a statute, ordinance, or regulation of a public entity," and Washington makes breach of a statute, ordinance or administrative rule evidence of negligence; because the Governors' orders had the force and effect of law, the health officers' orders rested on statute and the safety rules were regulations, every one was a source of negligence liability for an employer that did not comply.117 The Congressional Research Service's September 2020 report set out the elements of negligence ("entities generally owe a duty to take reasonable care to avoid injuring others"), catalogued the pandemic suits alleging failure "to employ certain safety measures to prevent the spread of COVID-19," and recorded that the State shields were "conditioned upon the businesses' substantial compliance with the applicable federal, state, or local guidelines" and that the federal SAFE TO WORK Act proposal would have protected only defendants "making reasonable efforts to comply with applicable government standards and guidance pertaining to COVID-19."118 An employer that measured its conduct against those instruments was meeting the legal standard the State fixed for it; one that did not stood exposed to negligence liability, agency citation, abatement orders and prosecution. The decisions are adjudications, not duties; they are the judicial recognition that the duties were real.
The causation runs from the command to the measure
The causation follows from the first element of the Suspension Clause to the seventh. "Due to" is but-for causation, and the counterfactual is objective: whether, had the governmental directives not issued, the law would have required the change. The standing duty was the vessel and the pandemic directives filled it. The safe-workplace statutes and the general duty clause had no COVID-19 content until the health authorities said what a safe workplace required, and the shields had none until the standards they incorporate existed. From that moment distancing, screening, sanitation, ventilation and face coverings, the workplace infection-prevention and exposure-control requirements of every open premises, were the law's requirement, taken because governmental directives defined the duty and not otherwise. Tri-State applied the test exactly that way: the hospital "was required to make these changes to ensure compliance with the Proclamation," and "Sick patients and employees alone did not require additional protocols."119 The causation here runs from the command to the measure without an intervening choice, and the Notice's own words agree: a modification "required by a governmental order as a condition of reopening" is a partial suspension due to the order.120 An employer that distanced, screened, sanitized and masked in that environment was complying with orders from appropriate governmental authorities within the meaning of the clause.
The United States' own definition, applied in fifty-one jurisdictions
The three layers hold in every jurisdiction, and the ground fails in all fifty-one. First, the orders' operating conditions: in every State the right to operate was conditioned on distancing, screening, sanitation, capacity and face-covering measures stated in "shall," "must," "only if" or "provided that," so that the measure the Service calls "beyond the order" was ordinarily the order's own term (the last column of the table below). Second, the standing law: a communicable-disease control statute with a penalty in fifty-one of fifty-one jurisdictions; an offense reaching violation of the pandemic orders in fifty-one of fifty-one; a workplace-safety duty binding every private employer in fifty-one of fifty-one, federal everywhere and State-enacted in forty-seven; and a COVID-19 workplace rule with its own force of law in twenty-eight (the second, third and fourth columns). Third, the shields: nineteen legislatures protected only the business that complied with governmental standards, guidance, orders or protocols, and eleven more fixed a culpability floor and left the orders and the safety statutes to enforce it (the fifth column). Where an instrument in the record was a recommendation, this analysis says so and names the instrument that made it compulsory. The United States' own definition of the exclusion, an employer "not being ordered to do so," is the definition these layers answer: an employer that reorganized its floor, screened its workers, capped its occupancy or masked its staff because chapter 81, section 411.103, GA-28 and section 148.003 required it, or because their equivalents in its own State did, was being ordered to do so.121
Two consequences follow for Q&A-14. The first is consistency. When the Notice was challenged, the United States described it as guidance that binds no one:
Whether Notice 2021-20 exists or not, the statute will control whether a refund is warranted.
Doc. 44 at 24
and it described the Notice's ten-percent figure as "[e]ffectively ... a safe harbor" that "isn't an eligibility requirement," "a quintessential safe harbor," and, in Tri-State, "a method for the test to be met not as a requirement to meet the test."122 Guidance that is optional when the Notice is challenged does not become a binding rule of exclusion when a claim is examined. Q&A-14 is non-binding guidance, as the United States says, and it does not displace the statute's causation test. The second consequence is that where the Notice's own words favor the employer, the Service is bound by them "to the same extent as a revenue ruling," and Q&A-17, Q&A-18 and Q&A-19 favor the employer: they treat a mandated modification as a suspension due to the order.123 The Service's own vocabulary for Q&A-14, "not being ordered to do so," is the vocabulary the standing duties answer. A measure required by an order enforced by fine, license revocation, exclusion from Medicare or prosecution is not a voluntary measure.
The standing duties by State
The table carries, for each of the fifty States and the District of Columbia, the standing law that bound every employer in the jurisdiction on every day of the six quarters whether or not any emergency order named it, in five columns: the communicable-disease control statute and its penalty; the offense that reached violation of the pandemic orders; the workplace-safety duty and, where one existed, the COVID-19 workplace rule with its own force of law; the liability shield and its condition; and one clause by which the orders conditioned the right to operate, with its verb. Each cell is a citation and not an argument. The Library's Duties collection, one file for each of the fifty-one jurisdictions and one for the federal layer, supplies every cell; a Duties exhibit carries the prefix DUT-, and a State, metropolitan or agency exhibit that a Duties file cross-references keeps its own identifier. Penalties are stated as the records state them. "Federal duty" is 29 U.S.C. § 654(a)(1), the general duty clause, which bound every private employer in every jurisdiction (Ex. DUT-FED-001).
The table keeps the character of every instrument as its text has it. A "shall," a "must" or an offense provision is a duty; a "should," an "encouraged" or a "recommends" is a recommendation, marked "rec.," whose legal effect comes only from the instrument that incorporated it (the order that conditioned permission to operate on it, the shield that protected only the business that followed it, or the general duty clause), and the cell names that instrument. A provision that confers a power on the Governor or a health authority, or gives orders the force of law, is the source of the orders' force and is cited as that, not as a duty on the employer; a statute that commands a health officer, board or department is the machinery that made the orders compulsory; a court decision is an adjudication and is cited as the judicial recognition that the duties were real; a bill that was introduced, died or was vetoed is cited only for what the legislature considered and never as a shield. A shield's condition is quoted where the statute has one; where the statute sets a culpability floor without a compliance clause, the cell says so. Every linked exhibit opens its record in the Library, with the instrument's operative text, its enforcement provision, its source and its grade; the State name opens that jurisdiction's page.
| Jurisdiction |
Communicable-disease control statute and its penalty |
Offense reaching violation of the pandemic orders |
Workplace-safety duty and COVID-19 workplace rule |
Liability shield and its condition |
Operating-condition clause of the orders, with its verb |
| Alaska | AS 18.15.355-.395: close, direct or decontaminate any facility; isolation and quarantine on pain of class B and A misdemeanors (Ex. DUT-AK-001) | Disaster Act has no general penalty (Ex. DUT-AK-002); mandates recited AS 11.41.250 reckless endangerment, fines to $500,000 for an organization, and a civil fine to $1,000 (Ex. DUT-AK-003, Ex. DUT-AK-004, Ex. DUT-AK-016) | AS 18.60.075(a): "An employer shall do everything necessary to protect the life, health, and safety of employees" (Ex. DUT-AK-005); 8 AAC 61.1010 (Ex. DUT-AK-006); AKOSH PD 21-05, Healthcare ETS, July 21, 2021 (Ex. DUT-AK-007) | HB 76, ch. 2 SLA 2021 (Apr. 30, 2021): immunity only "in substantial compliance with the applicable federal, state, and municipal laws and health mandates" (Ex. DUT-AK-014) | Health Mandate 016, Atts. D, F: businesses "can resume operations if they meet all of the following requirements"; "must" screening and sanitation; "strongly encouraged" coverings (rec.) (Ex. DUT-AK-017, Ex. DUT-AK-018; Ex. AK-018, Ex. AK-042) |
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| Alabama | Ala. Code § 22-2-2(6) (Board rules "force and effect of law"), § 22-11A-7 (obey health officers' instructions), ch. 22-12 (Ex. DUT-AL-001, Ex. DUT-AL-003, Ex. DUT-AL-004); § 22-2-14: misdemeanor, $25-$500, each day separate (Ex. DUT-AL-002) | § 31-9-22: $500 or six months (Ex. DUT-AL-014); §§ 31-9-6(1), 31-9-13 force of law (Ex. DUT-AL-011, Ex. DUT-AL-013) | Federal duty (Ex. DUT-AL-009); § 25-1-1: "do everything reasonably necessary," including "conditions and methods of sanitation and hygiene" (Ex. DUT-AL-010); no State COVID rule | Act 2021-4 (Feb. 12, 2021; retroactive to Mar. 13, 2020): withheld where the entity "did not reasonably attempt to comply with the then applicable public health guidance" (Ex. DUT-AL-015); Governor's proclamation of May 8, 2020 (Ex. AL-019) | Safer at Home Order ¶ 4 (Apr. 28, 2020): "all employers shall take reasonable steps ... maintaining six feet of separation ... regularly disinfecting" (shall; to Apr. 9, 2021); Safer Apart Order (Apr. 7, 2021): "are encouraged" (rec.) |
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| Arkansas | Ark. Code §§ 20-7-110, -109: control of "all sanitary and quarantine measures" (Ex. DUT-AR-001, Ex. DUT-AR-002); § 20-7-101: misdemeanor, $100-$500 or one month, each day separate; civil penalty to $1,000 (Ex. DUT-AR-003; Ex. DUT-AR-006) | § 12-75-114: force of law, no offense section; offense through § 20-7-101, recited from EO 20-13 (Apr. 4, 2020) (Ex. DUT-AR-005) | §§ 11-2-117, 11-2-102 ("sanitation and hygiene"), 11-2-104 misdemeanor each day (Ex. DUT-AR-008 to Ex. DUT-AR-010); federal duty (Ex. DUT-AR-011); no State COVID rule | EO 20-33 (June 15, 2020); Act 559 (Apr. 5, 2021): presumption only for a business "substantially complying with health and safety directives or guidelines issued by the Governor, the Secretary of the Department of Health, the Centers for Disease Control and Prevention" and CMS (Ex. DUT-AR-013) | EO 20-13 ¶ 3 (Apr. 4, 2020): "shall implement the following social distancing protocols" (shall); ADH Business Limitations Directive (May 8, 2020) and Directive on Resuming Restaurant Dine-in Operations (June 15, 2020): "must"; EO 21-03 (Feb. 26, 2021): "are encouraged to adhere" (rec.) |
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| Arizona | A.R.S. § 36-787: law enforcement "shall enforce orders issued by the governor" (Ex. DUT-AZ-001); § 36-788 (Ex. DUT-AZ-002); § 36-624 (Ex. DUT-AZ-003); § 36-630: class 3 misdemeanor (Ex. DUT-AZ-004) | § 26-317: class 1 misdemeanor (Ex. DUT-AZ-007); § 26-303(E) (Ex. DUT-AZ-006); arrest upheld, Miller v. City of Scottsdale (Ex. DUT-AZ-019) | § 23-403: "free from recognized hazards" (Ex. DUT-AZ-008); § 23-418 penalties, class 6 felony (Ex. DUT-AZ-009); no State COVID standard | SB 1377 (Apr. 5, 2021; retroactive to Mar. 10, 2020): good faith "presumed" only for a business that "adopted and implemented reasonable policies related to the public health pandemic" (Ex. DUT-AZ-010) | EO 2020-36 ¶ 5: "shall develop, establish and implement policies based on guidance from the CDC, Department of Labor, ... OSHA and ADHS" (Ex. AZ-019, shall); "shall be enforced" (Ex. AZ-020); EO 2021-06 "are encouraged" (Ex. AZ-037, rec.) |
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| California | H&S Code §§ 120140, 120145 (Ex. DUT-CA-001); §§ 120175, 120195 (Ex. DUT-CA-002); § 101040 (Ex. DUT-CA-004); §§ 120275, 120295: misdemeanor, "a separate offense for each day" (Ex. DUT-CA-003) | Gov't Code § 8567(a): force of law (Ex. DUT-CA-005); § 8665: misdemeanor, $1,000 or six months (Ex. DUT-CA-007); Newsom v. Superior Court (Ex. DUT-CA-018) | Lab. Code §§ 6400-6407 (Ex. DUT-CA-009); §§ 6423-6429 (Ex. DUT-CA-010); 8 CCR § 3203 (Ex. DUT-CA-011); 8 CCR §§ 3205-3205.4 ETS, Nov. 30, 2020, readopted June 17, 2021 | None enacted; AB 1035 died (Ex. DUT-CA-017); Evid. Code § 669 presumes negligence from violation of a statute or regulation (Ex. DUT-CA-013) | SPHO order of May 7, 2020 ¶¶ 2-3: reopen "with certain modifications"; "must ... continue at all times to practice physical distancing" (must); guidance "must" (Ex. DUT-CA-014); SPHO order of June 11, 2021: "will not be mandatory" (rec.) |
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| Colorado | C.R.S. §§ 25-1.5-101, -102 (Ex. DUT-CO-001, Ex. DUT-CO-002); § 25-1-506 (Ex. DUT-CO-004); § 25-1-114: unlawful for "any person, association, or corporation" to disobey a public-health order; $1,000 and one year (Ex. DUT-CO-003); § 25-1-516 (Ex. DUT-CO-005) | § 24-33.5-704 force of law, no penalty of its own (Ex. DUT-CO-006); enforced through the PHOs' § 25-1-114 recital, license suspension and trespass (Ex. CO-013, Ex. CO-031) | Federal duty (Ex. DUT-CO-009; no State general-duty statute); PHEW Act (Ex. DUT-CO-007); HFWA (Ex. DUT-CO-008); PHO 20-26 (Ex. CO-048) | None enacted; three bills postponed, each conditioned on good-faith compliance (Ex. DUT-CO-013, Ex. DUT-CO-018, Ex. DUT-CO-020); Premises Liability Act (Ex. DUT-CO-014) | PHO 20-28 § II.I: "must comply," "shall take," "must implement" (Ex. CO-020, must); PHO 20-38 employer duty to Sept. 30, 2021 (Ex. CO-041) |
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| Connecticut | §§ 19a-131 to -131i; § 19a-131a(d): $1,000 or one year per offense (Ex. DUT-CT-001); §§ 19a-206 (nuisance; closure; $250 per day), 19a-230 (Ex. DUT-CT-002) | § 28-9(b)(1): "full force and effect of law"; § 28-22 class D felony (Ex. DUT-CT-003); EO 9B (Sept. 15, 2020): business "is liable" for the mask fine; EO 9N (Nov. 24, 2020): $10,000 per Sector Rule violation | § 31-49; § 31-40v (Ex. DUT-CT-004); § 31-370 (Ex. DUT-CT-005); federal duty (Ex. DUT-CT-009); Safe Workplace Rules, Apr. 7, 2020 (Ex. DUT-CT-015); Sector Rules "legally binding" (EO 7PP, May 18, 2020) | Health care only: EO 7U § 1, 7V § 6, "in good faith" (Ex. DUT-CT-012), expired Mar. 1, 2021 (EO 10A § 4, Feb. 8, 2021); HB 5125 not enacted (Ex. DUT-CT-008) | EO 7V § 1 (Apr. 7, 2020): "Every workplace in the State of Connecticut shall take additional protective measures" (shall); EO 7PP (May 18, 2020): Sector Rules "shall constitute legally binding guidance" |
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| District of Columbia | D.C. Code §§ 7-131, 7-133, 7-139 (Ex. DUT-DC-005 to Ex. DUT-DC-007); § 7-140: $5,000 and ninety days; $1,000 and thirty days for a rule (Ex. DUT-DC-008) | § 7-2307: $1,000 per violation and civil action (Ex. DUT-DC-003); Act 23-247: licence revocation; guidance violation is order violation (Ex. DUT-DC-004) | § 32-1103 "Not Applicable" (Ex. DUT-DC-009); federal duty (Ex. DUT-DC-018); Act 23-384 (Aug. 20, 2020) and successors: employers "shall adopt and implement social distancing and worker protection policies" (Ex. DUT-DC-010 to Ex. DUT-DC-014) | Act 23-286 (Apr. 10, 2020): exemption for actions "to implement the provisions of the District of Columbia response plan and of" the disease law, except gross negligence (Ex. DUT-DC-015) | Mayor's Order 2020-067: DOH guidance "must be followed"; Mayor's Order 2021-097: compulsory guidance statements "are to be treated as lawful regulations" (cross-referenced to Ex. DC-005 to Ex. DC-079, must) |
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| Delaware | 16 Del. C. §§ 122, 126(a): regulations have "the force and effect of law" (Ex. DUT-DE-005); § 505 (Ex. DUT-DE-004); 20 Del. C. §§ 3131-3147 (Ex. DUT-DE-003); 16 Del. C. § 107(a): $100-$1,000 (Ex. DUT-DE-006) | 20 Del. C. § 3115(b): force of law; § 3122; § 3125: $50-$500 or six months per violation (Ex. DUT-DE-001, Ex. DUT-DE-002) | Federal duty (Ex. DUT-DE-018); 19 Del. C. §§ 106-107 (Ex. DUT-DE-013); no State COVID rule | None for businesses; immunities reach the State, contractors and medical personnel only | Fourth Modification ¶ 5 (Mar. 22, 2020): Essential Businesses "shall follow the coronavirus guidelines for public safety enumerated by the CDC and DPH" or face "immediate closure" (shall); Twenty-First Modification (June 14, 2020): "must comply with" the Reopen Plan; "strongly encouraged" (rec.) |
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| Florida | § 381.00315: "isolation and quarantine of persons, animals, and premises"; rules on "the closure of premises"; second-degree misdemeanor for violating any requirement under a declared emergency (Ex. DUT-FL-001); §§ 381.0011, .0012 (Ex. DUT-FL-002, Ex. DUT-FL-003) | § 252.36(1)(b) force of law (Ex. DUT-FL-005); § 252.47 "shall enforce" (Ex. DUT-FL-007); § 252.50: second-degree misdemeanor, sixty days and $500 (Ex. DUT-FL-008) | Federal duty (Ex. DUT-FL-015); no ch. 442; no State COVID rule | § 768.38 (Mar. 29, 2021; retroactive to 2020 causes): only a defendant that "made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance" (Ex. DUT-FL-012) | EO 20-123 § 1.A (May 14, 2020): "may serve patrons at indoor seating so long as they limit indoor occupancy up to fifty (50) percent" (so long as); EO 20-139 § 2 (June 3, 2020): "guidance and not enforceable" (rec.) |
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| Georgia | O.C.G.A. §§ 31-12-4, 31-12-3(a), 31-2A-4 (Ex. DUT-GA-001 to Ex. DUT-GA-003); r. 511-9-1 (Ex. DUT-GA-005); § 31-5-8 misdemeanor; § 31-5-9 injunction (Ex. DUT-GA-004) | § 38-3-7 misdemeanor; § 38-3-4 (Ex. DUT-GA-006); § 38-3-51 (Ex. DUT-GA-007) | Federal duty (Ex. DUT-GA-008); § 34-2-10 "reasonably safe"; § 34-2-13 misdemeanor (Ex. DUT-GA-009); §§ 34-7-20, 51-3-1 (Ex. DUT-GA-010, Ex. DUT-GA-011); no State COVID rule | SB 359 (Aug. 5, 2020), HB 112: gross negligence floor; no compliance clause (Ex. DUT-GA-012, Ex. DUT-GA-013); § 38-3-35(b): immunity only for those "complying with or reasonably attempting to comply with" the Act and orders (Ex. DUT-GA-019) | EO 04.20.20.01 (Apr. 20, 2020): "shall implement measures which mitigate the exposure and spread of COVID-19 ... Such measures shall include" twenty measures (shall); EO 08.19.21.03 (Aug. 19, 2021): "shall implement ... may include" |
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| Hawaii | HRS § 321-1 (Ex. DUT-HI-003); § 325-8: quarantine "compulsory physical separation," misdemeanor; § 325-14 (Ex. DUT-HI-002); HAR § 11-156-5 (Ex. DUT-HI-012) | HRS § 127A-25 force of law; § 127A-29: misdemeanor, $5,000 or one year (Ex. DUT-HI-001), recited in every proclamation | HRS § 396-6(a) (Ex. DUT-HI-005); HAR § 12-60-2 (Ex. DUT-HI-006); HAR § 12-60-51, Healthcare ETS, July 25, 2021 (Ex. DUT-HI-008); DIR 2021-02 (Ex. DUT-HI-009) | None for businesses (H.R. 60, Ex. DUT-HI-018); health care: facilities that "in good faith comply completely with all state and federal orders" (Ex. HI-007; EO 21-06, Sept. 1, 2021) | Tenth Proclamation (July 17, 2020): "All persons shall comply with applicable ... guidance from the Centers for Disease Control and Prevention (CDC) as well as ... State, county, industry and regulatory requirements" (shall; carried to Oct. 1, 2021 by the Twenty-First Proclamation of June 7, 2021 and the Emergency Proclamation of Aug. 5, 2021) |
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| Iowa | Iowa Code § 139A.4 (Ex. DUT-IA-001); § 135.144 (Ex. DUT-IA-002); 641 IAC ch. 1: exclusion from "workplace" (Ex. DUT-IA-012); § 135.38: simple misdemeanor (Ex. DUT-IA-004); § 139A.25 (Ex. DUT-IA-010) | § 29C.18(2) warrantless arrest (Ex. DUT-IA-005); § 135.35 "shall enforce" (Ex. DUT-IA-011); § 123.39 license sanctions (Ex. DUT-IA-003); 56 ABD complaints FY2021 (Ex. DUT-IA-014) | § 88.4(1), § 88.14 (Ex. DUT-IA-006); 875 IAC 10.20 (Ex. DUT-IA-018); ARC 5847C, Healthcare ETS, July 22, 2021 (Ex. DUT-IA-015) | SF 2338 (June 18, 2020; retroactive to Jan. 1, 2020), ch. 686D: safe harbor only where the act "was in substantial compliance or was consistent with any federal or state statute, regulation, order, or public health guidance related to COVID-19" (Ex. DUT-IA-007) | Proclamation of Apr. 27, 2020, § 2(A): "may reopen ... but only to the extent that it complies with the following requirements"; Proclamation of Nov. 10, 2020, § 4: "All employers shall evaluate ... shall take steps" (shall); Proclamation of Feb. 5, 2021: "I strongly encourage" (rec.) |
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| Idaho | § 56-1003(7) (2020): isolation and quarantine orders, misdemeanor (Ex. DUT-ID-001); § 56-1008: misdemeanor for violating "any lawful notice, order, permit, standard, or rule" (Ex. DUT-ID-012); §§ 39-414, -415 (Ex. DUT-ID-003, Ex. DUT-ID-004); § 39-419: $300 or six months (Ex. DUT-ID-005); SB 1060: $50 infraction for district orders from Mar. 19, 2021 (Ex. DUT-ID-006) | § 46-1008 force of law; no penalty in the Act (Ex. DUT-ID-008, Ex. DUT-ID-009); orders recited § 56-1003(7)(c) | Federal duty (Ex. DUT-FED-001; no State plan); no State COVID rule | HB 6 (Aug. 27, 2020), ext. HB 149: except "an intentional tort or willful or reckless misconduct"; no compliance clause (Ex. DUT-ID-016 to Ex. DUT-ID-018) | Stage 1 Stay Healthy Order § 7.c (May 1, 2020): "Employers shall" (shall); Modified Stage 2 Stay Healthy Order (Nov. 14, 2020): "Employers must"; Stage 4 Guidelines (June 13, 2020) and the Stage 3 and Stage 4 Guidelines of Feb. 2 and May 11, 2021: "should" (rec.) |
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| Illinois | 20 ILCS 2305/2: "supreme authority in matters of quarantine and isolation"; closure power (Ex. DUT-IL-001); 77 Ill. Adm. Code 690 (Ex. DUT-IL-003); 2305/8.1: Class A misdemeanor (Ex. DUT-IL-014) | IEMA Act carries no general penalty (Ex. DUT-IL-002); rule 690.50 subjected non-compliant businesses to 8.1 (Ex. DUT-IL-004); 3305/18, /19 (Ex. DUT-IL-018, Ex. DUT-IL-015) | 820 ILCS 219/20 (public) (Ex. DUT-IL-007); federal duty for private employers (Ex. DUT-IL-013); 77 Ill. Adm. Code 690.50, Aug. 7, 2020 to May 17, 2021 (Ex. DUT-IL-004, Ex. DUT-IL-019, Ex. DUT-IL-020) | None; P.A. 101-0633 workers' compensation presumption rebuttable only by "industry-specific workplace sanitation, social distancing, and health and safety practices based on updated guidance issued by" the CDC or IDPH (Ex. DUT-IL-005, Ex. DUT-IL-006, Ex. DUT-IL-012) | EO 2020-10 (Mar. 20, 2020): "shall comply with Social Distancing Requirements" (shall); EO 2020-43 ¶ 6 (June 26, 2020): "Businesses must follow guidance"; EO 2021-22 (Sept. 3, 2021): "All employers must ensure that employees wear face coverings"; EO 2021-12 (June 11, 2021): "urged" (rec.) |
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| Indiana | Ind. Code 16-41-9-1.5: Class A misdemeanor for violating isolation or quarantine (Ex. DUT-IN-001); 16-20-1-24 to -26: no person may "institute, permit, or maintain any conditions that may transmit, generate, or promote disease" (Ex. DUT-IN-003); 16-19-3-9 to -12 (Ex. DUT-IN-004); 410 IAC 1-2.5 (Ex. DUT-IN-007) | 10-14-3-22(b) force of law; 10-14-3-34: Class B misdemeanor to Apr. 14, 2021 (Ex. DUT-IN-015), Class B infraction to $1,000 after (Ex. DUT-IN-002, Ex. DUT-IN-017) | 22-8-1.1-2, -3.1, -27.1 (Ex. DUT-IN-005); 620 IAC 1-1-1 (Ex. DUT-IN-019); IOSHA's 2022 release: enforced the general duty against CDC guidance (Ex. DUT-IN-020, agency release); no State COVID standard | 34-30-32 (Feb. 18, 2021; retroactive to Mar. 1, 2020): gross negligence or willful or wanton misconduct; no compliance clause (Ex. DUT-IN-006) | EO 20-26 ¶ 4 (May 1, 2020): "all Hoosier employers shall develop a plan to implement measures and institute safeguards"; "must comply with safety and health standards established and enforced by IOSHA" (shall/must); EO 20-48 (Nov. 13, 2020): "shall require employees to wear face coverings" |
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| Kansas | K.S.A. 65-101, 65-119, 65-126, 65-128, 65-129b, 65-202 (Ex. DUT-KS-001, Ex. DUT-KS-002, Ex. DUT-KS-003, Ex. DUT-KS-005, Ex. DUT-KS-010; 65-129b through Ex. DUT-KS-001 § 3 and Ex. DUT-KS-017); 65-127: $25-$100 per offense (Ex. DUT-KS-004); 65-129: class C misdemeanor (Ex. DUT-KS-006) | 48-939: class A misdemeanor to June 8, 2020; civil penalty to $2,500 per violation after (Ex. DUT-KS-011; 2020 Spec. Sess. H.B. 2016 § 36 (June 8, 2020); 2021 S.B. 40 § 9 (Mar. 24, 2021)) | 44-636 (Ex. DUT-KS-013); 65-129d (Ex. DUT-KS-008); federal duty; no State COVID rule | HB 2016 (June 9, 2020; retroactive to Mar. 12, 2020); K.S.A. 60-5504, 60-5502(j); SB 283: immunity only "acting pursuant to and in substantial compliance with public health directives," including CDC and OSHA rules (Ex. DUT-KS-014 to Ex. DUT-KS-016) | EO 20-29 ¶ 5(a) (Apr. 30, 2020): "can open if they comply with the following: i. Maintain at least 6 feet ... ii. Follow fundamental cleaning and public health practices" (can open if); EO 20-52 (July 2, 2020): "must require ... a mask"; "should follow" (rec.) |
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| Kentucky | KRS 214.020 (2020 text, Ex. DUT-KY-009; Ex. DUT-KY-001); 211.180 (Ex. DUT-KY-003); 902 KAR 2:050, 2:030 (Ex. DUT-KY-006, Ex. DUT-KY-020); 212.245 (Ex. DUT-KY-005); 211.990(2), 214.990(2) Class B misdemeanor, 212.990 (Ex. DUT-KY-004, Ex. DUT-KY-002, Ex. DUT-KY-016) | 39A.180 "full force of law" (Ex. DUT-KY-007); 39A.990: Class A misdemeanor to Feb. 1, 2021, fines after (Ex. DUT-KY-008); 902 KAR 2:210E: business fines and closure (Ex. DUT-KY-018) | 338.031 (Ex. DUT-KY-010); 338.991 (Ex. DUT-KY-011); 803 KAR 2:300 (Ex. DUT-KY-013); 803 KAR 2:330E, Healthcare ETS, July 20, 2021 (Ex. DUT-KY-012) | 2021 SB 5 (Apr. 11, 2021; retroactive to Mar. 6, 2020): no liability for "an owner who follows any executive action to prevent the spread of COVID-19" (Ex. DUT-KY-014) | EO 2020-257 ¶ 3 (Mar. 25, 2020): "must follow, to the fullest extent practicable, social distancing and hygiene guidance from the CDC and the Kentucky Department of Public Health. Failure to do so is a violation of this Order" (must follow); EO 2020-323 (May 8, 2020): "shall implement and comply" |
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| Louisiana | R.S. 40:4, 40:5, 40:7; LAC 51:II.117 (Ex. DUT-LA-001, Ex. DUT-LA-002, Ex. DUT-LA-004, Ex. DUT-LA-005); 40:6: crime; isolation or quarantine violations to two years; civil fines $100 per day (Ex. DUT-LA-003) | 29:724(A) force of law; (E): $500 or six months for "any person or representative of any firm, partnership, or corporation" (Ex. DUT-LA-006); 14:329.7 (Ex. DUT-LA-015) | 23:13: "reasonably safe"; "do every other thing reasonably necessary" (Ex. DUT-LA-010); federal duty; no State COVID rule | Acts 2020, Nos. 336, 362, 305 (retroactive to Mar. 11, 2020): protection only where the business did not "fail[] to substantially comply with the applicable COVID-19 procedures established by the federal, state, or local agency which governs the business operations" (Ex. DUT-LA-011 to Ex. DUT-LA-013) | Proclamation 74 JBE 2020 (June 4, 2020): sectors operate "under the following conditions"; "shall follow the applicable guidance from the State Fire Marshal published at opensafely.la.gov and the Louisiana Department of Health" (shall follow); Proclamation 89 JBE 2020 (July 11, 2020): face coverings "shall" |
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| Massachusetts | G.L. c. 17, § 2A (Ex. DUT-MA-001); c. 111, §§ 6, 95, 104 (Ex. DUT-MA-002, Ex. DUT-MA-005, Ex. DUT-MA-006); 105 CMR 300.200, .210 (Ex. DUT-MA-009, Ex. DUT-MA-010); c. 111, § 31: $1,000 (Ex. DUT-MA-004); §§ 122, 127A (Ex. DUT-MA-007, Ex. DUT-MA-008) | St. 1950, c. 639, § 8: one year or $500 (Ex. DUT-MA-012); c. 40, § 21D: $300 civil fine (Ex. DUT-MA-018); Desrosiers (Ex. DUT-MA-020) | c. 149, §§ 6, 113 (Ex. DUT-MA-013, Ex. DUT-MA-014); federal duty (Ex. DUT-MA-015); Mandatory Safety Standards under COVID-19 Order No. 33 (May 18, 2020) | Health care only, St. 2020, c. 64: "pursuant to a COVID-19 emergency rule and in accordance with otherwise applicable law," "in good faith" (Ex. DUT-MA-017) | COVID-19 Order No. 33 (May 18, 2020): operate "provided they comply with all workplace safety rules and standards"; "must immediately adopt and maintain"; self-certification (must; Ex. DUT-MA-016) |
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| Maryland | Health-Gen. § 18-102: Secretary "shall ... act properly to prevent the spread" (Ex. DUT-MD-001); § 18-208 (Ex. DUT-MD-002); § 18-905 (Ex. DUT-MD-003); COMAR 10.06.01.06: "order cessation of operation of a business" (Ex. DUT-MD-014); § 18-907: one year or $3,000 (Ex. DUT-MD-004) | Pub. Safety § 14-114: six months or $1,000; willful, one year or $5,000 (Ex. DUT-MD-006); § 14-3A-08: one year or $5,000 (Ex. DUT-MD-008), recited in every order | Lab. & Empl. § 5-104 (Ex. DUT-MD-010); §§ 5-809, 5-810 (Ex. DUT-MD-011, Ex. DUT-MD-012); Essential Workers' Protection Act, ch. 736 of 2021 (Ex. DUT-MD-013); COMAR 09.12.29, Healthcare ETS, Aug. 27, 2021 (Ex. DUT-MD-016) | Health care only, § 14-3A-06: "in good faith and under a catastrophic health emergency proclamation" (Ex. DUT-MD-009); HB 508, HB 1106 of 2021 hearings only | Order No. 20-05-13-01 ¶ III.g.i (May 13, 2020): "shall comply with: 1. applicable Local Orders; 2. applicable Secretary's Directives; 3. applicable social distancing guidance" (shall comply); MDH Amended Directive and Order No. 2021-05-14-01 (May 14, 2021): "Advisory Recommendations" (rec.) |
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| Maine | 22 M.R.S. §§ 801-825: emergency rules; § 804(2): cease-and-desist, $250-$1,000 per violation, each day separate; § 820 (Ex. DUT-ME-001) | 37-B M.R.S. § 786: Class E crime, six months and $1,000; § 742(1)(C) occupancy of premises (Ex. DUT-ME-004); licence consequence (EO 28 FY 19/20, Mar. 31, 2020) | Federal duty (Ex. DUT-FED-001; public-only State plan, 80 Fed. Reg. 46487, Ex. DUT-ME-006); 26 M.R.S. § 561-A (Ex. DUT-ME-005); §§ 42-50 (Ex. DUT-ME-007); § 833 (Ex. DUT-ME-018); no State COVID rule (checklists enforceable as an executive order: EO 16 FY 20/21, Nov. 4, 2020) | None general; 22 M.R.S. § 816(1) and 37-B M.R.S. § 822 immunize only acts "in accordance with" the chapter or persons "complying with or attempting to comply with" it (Ex. DUT-ME-001, Ex. DUT-ME-004) | EO 55 FY 19/20 § I(C) (May 29, 2020): "Any business authorized now to be open shall comply with the pertinent COVID-19 Prevention Checklist or other State of Maine Guidance" (shall comply); EO 19-A FY 20/21 (Dec. 15, 2020): "must require all persons to wear face coverings" |
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| Michigan | MCL 333.2253 (Ex. DUT-MI-001); 333.2251 (Ex. DUT-MI-002); 333.2453, .2451 (Ex. DUT-MI-005, Ex. DUT-MI-006); 333.2455 owner abatement (Ex. DUT-MI-007); 333.2261: misdemeanor, six months or $200 (Ex. DUT-MI-003); 333.2262: civil fine to $1,000 per day (Ex. DUT-MI-004) | MCL 30.403(2) force of law (Ex. DUT-MI-011); 30.405(3) misdemeanor (Ex. DUT-MI-010); MCL 10.33 to Oct. 2, 2020 (In re Certified Questions, Mich. Oct. 2, 2020; Ex. DUT-MI-012) | 408.1011 (Ex. DUT-MI-013); 408.1035 (Ex. DUT-MI-014); MIOSHA Emergency Rules, Oct. 14, 2020 to June 22, 2021 (re-issued Apr. 13, 2021; amended May 24, 2021), with citations (Ex. AGY-ST-LABOR-WORKPLACE-064, Ex. AGY-ST-LABOR-WORKPLACE-065) | 2020 PA 236 § 5 (Oct. 22, 2020): immunity for "a person who acts in compliance with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19"; PA 237, MCL 408.1085, retroactive to Mar. 1, 2020 (Ex. DUT-MI-015) | EO 2020-91 § 1 (May 18, 2020): "must, at a minimum: (a) Develop a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19" (must); MDHHS Emergency Order of Oct. 5, 2020: "must not allow ... unless" |
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| Minnesota | Minn. Stat. § 144.12 (Ex. DUT-MN-001); § 144.419 (Ex. DUT-MN-002); § 144.4196: employer "shall not discharge" (Ex. DUT-MN-003); § 145A.04 (Ex. DUT-MN-005); § 144.99: administrative penalty to $10,000, cease-and-desist (Ex. DUT-MN-004) | § 12.32 force of law; § 12.45: $1,000 or ninety days (Ex. DUT-MN-006); EO 20-99: gross misdemeanor for business owners (Ex. MN-032); Snell v. Walz (Ex. DUT-MN-018) | § 182.653 (Ex. DUT-MN-007); Minn. R. 5206.0600 (Ex. DUT-MN-010); MNOSHA "must follow requirements" (Ex. DUT-MN-014); Minn. R. 5205.0010 adopting the Healthcare ETS (Ex. DUT-MN-009) | None enacted (Ex. DUT-MN-021, negative finding); ch. 72 workers' compensation presumption (Ex. AGY-ST-UTILITIES-HOUSING-AG-067) | EO 20-40 ¶ 6: written COVID-19 Preparedness Plan implementing "Minnesota OSHA Standards and MDH and CDC Guidelines" (Ex. MN-015; to June 30, 2021, Ex. MN-038); EO 20-81 ¶ 15.a (July 22, 2020): "Businesses must require" (must); "the action is required" (Ex. DUT-MN-013) |
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| Missouri | RSMo 192.020 "make and enforce adequate orders" (Ex. DUT-MO-001); 192.290 (Ex. DUT-MO-002); 19 CSR 20-20.040, .050 (Ex. DUT-MO-007); 192.300 misdemeanor (Ex. DUT-MO-003); 192.320: class A misdemeanor, one year and $2,000 (Ex. DUT-MO-004, Ex. DUT-MO-016, Ex. DUT-MO-017) | RSMo 44.100 (Ex. DUT-MO-005); 44.130.2: misdemeanor (Ex. DUT-MO-006); enforcement "by any legal means" recited | Federal duty (Ex. DUT-FED-001); RSMo 292.300 "prevention of such industrial or occupational diseases" (Ex. DUT-MO-008); 292.180 (Ex. DUT-MO-009); Peters v. Wady (Ex. DUT-MO-010); no State COVID rule | None until Aug. 28, 2021; SB 51 & 42: recklessness or willful misconduct; posted-warning presumption; no compliance clause (Ex. DUT-MO-011, Ex. DUT-MO-012) | DHSS Director's Order of Apr. 3, 2020: "every person and business in the State of Missouri shall abide by social distancing requirements"; "shall practice good hygiene and, where feasible, work from home" (shall; continued by the Director's Orders of Apr. 27 and May 28, 2020 to June 15, 2020); county orders after |
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| Mississippi | § 41-3-15: "sanitary and quarantine measures"; detainment and arrest (Ex. DUT-MS-001, Ex. DUT-MS-003); § 41-3-17 (Ex. DUT-MS-002); § 41-23-5 "physical control over property and individuals" (Ex. DUT-MS-006, Ex. DUT-MS-007); § 41-23-1 (Ex. DUT-MS-009); Rules: exclude affected employees (Ex. DUT-MS-004); § 41-23-2: felony, $5,000 or five years (Ex. DUT-MS-008) | § 33-15-11(b)(5)-(6) (Ex. DUT-MS-005); § 33-15-43 recited in every general order; municipal: § 45-17-9 misdemeanor, $300 or six months (Ex. DUT-MS-015, Ex. DUT-MS-016) | Federal duty (Ex. DUT-FED-001); non-delegable duty (Ex. DUT-MS-013, Ex. DUT-MS-014, adjudications); no State COVID rule | SB 3049 (July 8, 2020; retroactive to Mar. 14, 2020): immunity only for a person "who attempts in good faith to follow applicable public health guidance" (Ex. DUT-MS-010) | EO 1525 ¶ II(e) (Sept. 30, 2020): "shall make reasonable, good-faith efforts to comply with the CDC's and Mississippi State Department of Health's regulations and guidelines ... including" nine measures (shall; to Mar. 3, 2021); EO 1549 (Mar. 2, 2021): "are encouraged" (rec.) |
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| Montana | § 50-1-202 (Ex. DUT-MT-001); §§ 50-1-203, -204 (Ex. DUT-MT-002, Ex. DUT-MT-003); § 50-2-118: local officer "shall ... take steps to limit contact between people ... including ... ordering the closure of buildings" (Ex. DUT-MT-005); § 50-1-103 (Ex. DUT-MT-004); § 50-2-123 (Ex. DUT-MT-006); § 50-2-124: $500 or ninety days, each day separate (Ex. DUT-MT-007) | § 10-3-104 carries no penalty (Ex. DUT-MT-008); every Directive was a public health order enforceable under § 50-1-103(2) (Ex. MT-009, Ex. MT-013, Ex. MT-016, Ex. MT-018) | § 50-71-201: "require the use of health and safety devices ... including but not limited to air masks" (Ex. DUT-MT-010); §§ 50-71-202, 39-71-1504 (Ex. DUT-MT-011, Ex. DUT-MT-012); federal duty; no State COVID rule | SB 65 (Feb. 10, 2021): § 27-1-1602 gross negligence floor (Ex. DUT-MT-013); § 27-1-1606: "a complete bar" for "reasonable measures consistent with a federal or state statute, regulation, order, or public health guidance" (Ex. DUT-MT-014); § 27-1-1608 (Ex. DUT-MT-016) | Directives of 2020: "shall," "must," "required" for closure, distancing, capacity, screening, sanitation and coverings (Ex. DUT-MT-021 to Ex. DUT-MT-025; Ex. MT-009, Ex. MT-013, Ex. MT-014, Ex. MT-016, Ex. MT-018); "should" for employer policies (Ex. DUT-MT-022, Ex. DUT-MT-023, Ex. DUT-MT-026, rec.) |
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| North Carolina | G.S. 130A-144(f): "All persons shall comply with control measures" (Ex. DUT-NC-001); 130A-2(7) (Ex. DUT-NC-002); 10A NCAC 41A .0201: CDC guidelines "the required control measures" (Ex. DUT-NC-007); 41A .0101 (Ex. DUT-NC-008); 130A-25: misdemeanor, to two years (Ex. DUT-NC-001) | 166A-19.30(d): Class 2 misdemeanor (Ex. DUT-NC-003); 14-288.20A (Ex. DUT-NC-004); 166A-19.31 (Ex. DUT-NC-012); Ace Speedway (Ex. DUT-NC-017, Ex. DUT-NC-018) | 95-129(1)-(2) (Ex. DUT-NC-005); NCDOL enforcement plan (Ex. DUT-NC-014, Ex. DUT-NC-015); 13 NCAC 07F .0101 as emergency standard, July 21, 2021 (Ex. DUT-NC-009, Ex. DUT-NC-016) | S.L. 2020-3 § 4.14 (May 4, 2020); S.L. 2020-89, G.S. 99E-71 (Ex. DUT-NC-006): gross negligence floor; "Every person shall provide ... reasonable notice of actions taken ..."; no compliance clause | EO 141 § 1(2) (May 20, 2020): establishments open to the public "must follow" the Core Signage, Screening, and Sanitation Requirements (must follow; to EO 204, Mar. 23, 2021); EO 147 (June 24, 2020): "must have all workers wear Face Coverings"; EO 138 § 3(D) (May 5, 2020): "strongly encouraged" (rec.) |
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| North Dakota | 23-01-05(12) (pre-2021 text in Ex. ND-061; Ex. DUT-ND-001); 23-07-06, -13, -21 (Ex. DUT-ND-002); 23-07.6-02: "shall obey the health officer's rules and orders" (Ex. DUT-ND-003); 23-35 (Ex. DUT-ND-004); infraction $1,000; class B misdemeanor $20,000 for an organization (Ex. DUT-ND-006) | 37-17.1-05(2), (6)(g), (8): "force of law"; infraction, $1,000 (Ex. DUT-ND-005), recited in every order (Ex. ND-013, Ex. ND-038, Ex. ND-062) | Federal duty (Ex. DUT-ND-008); WSI 65-03-01 (Ex. DUT-ND-007); SHO Order 2020-08: "Businesses must require that all persons ... wear face coverings" (Ex. ND-061); Healthcare ETS (Ex. SEC-04-014) | HB 1175 (Apr. 23, 2021; retroactive to Jan. 1, 2020): immunity for an act "in substantial compliance or ... consistent with a federal or state statute, regulation, or order related to COVID-19" (Ex. ND-079) | EO 2020-06.4: ND Smart Restart standards "must be adopted and rigorously followed" (Ex. ND-038, must); May 22, 2020 "strongly encouraged" (Ex. ND-045, rec.); Nov. 13, 2020 "must" (Ex. ND-061, Ex. ND-062) |
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| Nebraska | § 71-501 (Ex. DUT-NE-001); § 71-502: "All officers and other persons shall obey and enforce" (Ex. NE-099; Ex. DUT-NE-002); § 81-601 (Ex. DUT-NE-003); 173 NAC 6 (Ex. DUT-NE-004); § 71-506: Class V misdemeanor, injunction (Ex. DUT-NE-005); § 71-1631.01 (Ex. DUT-NE-007) | § 81-829.57: "Each person within this state shall conduct himself or herself and keep and manage his or her affairs and property" to assist the State (Ex. DUT-NE-009); no Act penalty (Ex. DUT-NE-008, Ex. DUT-NE-010); DHMs enforced under § 71-506; §§ 23-174, 23-114.05 (Ex. DUT-NE-011, Ex. DUT-NE-012) | Federal duty (Ex. DUT-NE-017); §§ 48-412, 48-404, 48-424, 48-443 (Ex. DUT-NE-006, Ex. DUT-NE-014 to Ex. DUT-NE-016); no State COVID rule | LB 139 (May 25, 2021; from May 26, 2021): bar where the act "was in substantial compliance with any federal public health guidance" of the CDC, CMS or OSHA (Ex. DUT-NE-019, Ex. DUT-NE-020) | DHMs: "Such businesses shall require the use of masks"; "shall require six (6) feet of distance"; "Failure to comply with this Order will result in legal action" (Ex. NE-013, Ex. NE-021, shall); green-phase "strongly recommended" (Ex. NE-026, rec.) |
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| New Hampshire | RSA 141-C (Ex. DUT-NH-001); 141-C:11, :12: "shall be complied with immediately" (Ex. DUT-NH-002, Ex. DUT-NH-003); 141-C:16-a, -b (Ex. DUT-NH-004, Ex. DUT-NH-005); He-P 301.05: "employers shall exclude" (Ex. DUT-NH-020); 141-C:21: misdemeanor; "a felony if any other person" (Ex. DUT-NH-006) | RSA 4:45, 4:47 (Ex. DUT-NH-007, Ex. DUT-NH-008); 21-P:45 (Ex. DUT-NH-009); 21-P:47 misdemeanor (Ex. DUT-NH-010); EO #65 (Aug. 13, 2020): $1,000 and $2,000 per day; closure | RSA 281-A:64: "Every employer shall provide employees with safe employment" (Ex. DUT-NH-011); Lab 602.01 (Ex. DUT-NH-018); RSA 277:11 (Ex. DUT-NH-012); federal duty (Ex. DUT-FED-001); Universal Guidelines for All New Hampshire Employers and Employees ("must"), mandatory through EO #40 ¶ 3 (May 1, 2020) and EO #52 ¶ 1 (June 15, 2020) | No general shield (HB 149 retained); RSA 21-P:41: "complying with or reasonably attempting to comply with ... any order or rule" (Ex. DUT-NH-014); 21-P:42-a (July 30, 2021), health facilities (Ex. DUT-NH-013) | EO #52 ¶ 1 (June 15, 2020): "All businesses or other organizations operating within this State shall comply with the Universal Business Guidelines" (shall comply; to May 7, 2021); Universal Best Practices (May 8, 2021): "recommendations" (rec.) |
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| New Jersey | Emergency Health Powers Act, 26:13 (close, compel evacuation of, decontaminate any facility) (Ex. DUT-NJ-001); 26:4-2 (Ex. DUT-NJ-002); N.J.A.C. 8:57-1.11 (Ex. DUT-NJ-012); 26:3-46 (Ex. DUT-NJ-016); 26:4-129: $10-$100 (Ex. DUT-NJ-003); 26:1A-10: $50-$1,000 (Ex. DUT-NJ-005) | App. A:9-45: "binding upon each and every person"; A:9-49: disorderly person, six months or $1,000 (Ex. DUT-NJ-006); JWC Fitness (Ex. DUT-NJ-013); Attorney General charges (Ex. DUT-NJ-015, Ex. DUT-NJ-018) | 34:6A-3: "reasonably safe and healthful ... including methods of sanitation and hygiene" (Ex. DUT-NJ-009); 34:6A-33 (Ex. DUT-NJ-010); federal duty (Ex. DUT-FED-001); N.J.A.C. 12:70, Aug. 10, 2020 (Ex. DUT-NJ-014); EO 192 (Oct. 28, 2020) | Health care only, P.L. 2020, c. 18: "in support of the State's response," "in good faith," to Sept. 1, 2021 (Ex. DUT-NJ-007; Ex. NJ-053); A4189 not enacted (Ex. DUT-NJ-008) | EO 192 (Oct. 28, 2020; eff. Nov. 5, 2020): every worksite "is required to abide by the following requirements, at minimum" (is required to); EO 107 "must close," "shall abide by social distancing practices" (Ex. NJ-004) |
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| New Mexico | § 24-1-3: "close any public place and forbid gatherings" (Ex. DUT-NM-001); § 24-1-15 (Ex. DUT-NM-002); 7.4.3.9 NMAC (Ex. DUT-NM-009); § 24-1-21: petty misdemeanor; civil action (Ex. DUT-NM-003) | § 12-10A-19: civil administrative penalty to $5,000 per violation (Ex. DUT-NM-005), recited in every order; AHEMA no penalty (Ex. DUT-NM-006); Grisham v. Reeb (Ex. DUT-NM-012, Ex. DUT-NM-013) | § 50-9-5(A) (Ex. DUT-NM-007); § 50-9-24 to $126,749; 11.5.1.16 NMAC amendment, Aug. 5, 2020: report each case within four hours (Ex. AGY-ST-LABOR-WORKPLACE-066, Ex. AGY-ST-LABOR-WORKPLACE-069); rapid response (Ex. DUT-NM-019, Ex. DUT-NM-017) | None enacted; HB 16 (2020), conditioned on compliance "with federal and state laws that provide requirements for mitigation," never heard (Ex. DUT-NM-016) | PHO of May 15, 2020: "Essential businesses must operate in accordance with the pertinent COVID-Safe Practices" (must); PHOs of June 30 and Aug. 17, 2021: "must adhere to the pertinent COVID-Safe Practices"; CSPs "Required" vs "Best Practices" (Ex. DUT-NM-010) |
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| Nevada | NRS 441A.160, .180, .900, .910 misdemeanor (Ex. DUT-NV-001); ch. 439 (Ex. DUT-NV-002); NAC 441A.280: every person to "promptly cooperate" (Ex. DUT-NV-008); NRS 193.150: six months and $1,000 (Ex. DUT-NV-005) | ch. 414 carries no penalty (Ex. DUT-NV-003); Directives recited NRS 199.280 (Ex. DUT-NV-011), 202.450, .470 (Ex. DUT-NV-006), license suspension, Clark County Code 3.04.065 (Ex. MET-LAS-026), SB 4 § 30 (Aug. 11, 2020) | NRS 618.375, .385, .395, .545 (Ex. DUT-NV-004); NAC 618.540 (Ex. DUT-NV-009); NV OSHA "Required"/"Recommended" memoranda and enforcement process (Ex. AGY-ST-LABOR-WORKPLACE-028, Ex. AGY-ST-LABOR-WORKPLACE-032); SB 4 §§ 11-15 | SB 4 § 29 (Aug. 11, 2020): immunity only for an entity "in substantial compliance with controlling health standards" | Directive 018 § 9: "All employers must take proactive measures to ensure compliance with the social distancing and sanitation guidelines. All employers shall require employees who interact with the public to wear face coverings" (Ex. NV-016, must/shall); Directive 021 § 3 floor (Ex. NV-017); Directive 044 distancing "encouraged" (Ex. NV-038, rec.) |
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| New York | PHL § 16 (Ex. DUT-NY-003); § 206 (Ex. DUT-NY-004); §§ 225, 229 (Ex. DUT-NY-005, Ex. DUT-NY-006); § 2100 (Ex. DUT-NY-007); § 1303 (Ex. DUT-NY-008); 10 NYCRR 2.53 (Ex. DUT-NY-009); § 12: civil penalty to $2,000 per violation (Ex. DUT-NY-001); § 12-b: misdemeanor; one year or $10,000 (Ex. DUT-NY-002) | Exec. Law § 29-a as amended by ch. 23 of 2020 (Ex. DUT-NY-010; ch. 23 of the Laws of 2020, Mar. 3, 2020); EO 202.14 (Apr. 7, 2020): violations punishable under PHL § 12-b(2); Exec. Law § 24(5) (Ex. DUT-NY-011) | Lab. Law § 200 (Ex. DUT-NY-013); federal duty (Ex. DUT-NY-017); HERO Act (ch. 105 of the Laws of 2021, May 5, 2021), Lab. Law § 218-b, standard July 6, 2021, activated Sept. 6, 2021 (Ex. DUT-NY-014, Ex. DUT-NY-015); 10 NYCRR Subpart 66-3 (June 23, 2021) | Health care only, PHL art. 30-D: "in accordance with applicable law ... in support of the state's directives" (Ex. DUT-NY-016), repealed Apr. 6, 2021 (Ex. DUT-NY-018) | EO 202.6 (Mar. 18, 2020): "Each employer shall reduce the in-person workforce at any work locations by 50%" (shall); EO 202.31 (May 14, 2020): "must be operated subject to the guidance promulgated by the Department of Health" (must); NY Forward office-work guidance (May 29, 2020): "must"/"should" as written |
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| Ohio | R.C. 3701.13 (Ex. DUT-OH-001, Ex. DUT-OH-002); 3701.14 (Ex. DUT-OH-003); 3701.56 (Ex. DUT-OH-006); 3701.81(C): place-of-trade duty since 1974 (Ex. DUT-OH-007); 3707.01, .48 (Ex. DUT-OH-008, Ex. DUT-OH-009); 3701.352, 3701.99(C): second-degree misdemeanor, ninety days and $750 (Ex. DUT-OH-004, Ex. DUT-OH-005) | Director's Orders carried 3701.352 and 3701.99(C), recited from Apr. 2, 2020 (Ex. OH-014); 3701.28 (Ex. DUT-OH-016); local penalties (Ex. DUT-OH-010, Ex. DUT-OH-012) | 4101.11, 4101.12 frequenter statutes: "safe for the employees therein and for frequenters thereof" (Ex. DUT-OH-013, Ex. DUT-OH-014); Eicher (Ex. DUT-OH-017); federal duty (Ex. DUT-FED-001); no State COVID rule (checklists incorporated, Ex. OH-098) | HB 606: reckless, intentional or willful or wanton conduct; an order or guideline "shall neither create nor be construed as creating a duty of care"; no compliance clause (Ex. DUT-OH-020) | May 29, 2020 order: "All businesses and operations shall continue to comply with Social Distancing Requirements"; "Businesses must require all employees to wear facial coverings" (Ex. OH-025, Ex. OH-019, shall/must); Nov. 13, 2020: open only "in compliance" (Ex. OH-037) |
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| Oklahoma | 63 O.S. 1-502 (Ex. DUT-OK-001); 1-504: "It shall be unlawful ... to violate the terms or conditions of the quarantine" (Ex. DUT-OK-002); 1-106(C)(1) (Ex. DUT-OK-003); 21 O.S. 1195: misdemeanor (Ex. DUT-OK-004); 1199 (Ex. DUT-OK-005) | 683.9 (Ex. DUT-OK-006); 683.23(C) reaches OEM rules; Governor's orders recited no penalty (Ex. DUT-OK-007); 6403 (Ex. DUT-OK-008); municipal ordinances under 11 O.S. 22-120 (Ex. DUT-OK-009) | 40 O.S. 403 (public only) (Ex. DUT-OK-010 to Ex. DUT-OK-012); federal duty for private employers; no State COVID rule | 76 O.S. 111 (May 21, 2020): only "if the act or omission ... was in compliance or consistent with federal or state regulations, a Presidential or Gubernatorial Executive Order, or guidance applicable at the time" (Ex. DUT-OK-013); 76 O.S. 112 (Ex. DUT-OK-014); 6406 (Ex. DUT-OK-015) | Commerce list: "must publicly post and adhere to social distancing guidelines in order to remain open" (Ex. OK-014, must); EO 2020-20: "shall ensure a minimum of six (6) feet of separation" (Ex. OK-033, Ex. OK-034); OURS Plan "must"/"recommended" (Ex. OK-021); EO 2020-13 "should" (Ex. OK-023, rec.) |
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| Oregon | ORS 433.010: "No person shall willfully cause the spread," Class C felony; 433.441, .443 (Ex. DUT-OR-001); 431A.010: $500 a day (Ex. DUT-OR-002); 431.150-.157 (Ex. DUT-OR-003); OAR 333-019-0010 (Ex. DUT-OR-006) | ORS 401.192(1): "full force and effect of law"; 401.990: Class C misdemeanor, thirty days and $1,250 (Ex. DUT-OR-004); OLCC actions affirmed (Along Came Trudy) | ORS 654.010, 654.022 ("shall obey and comply with every requirement of every order") (Ex. DUT-OR-005); temporary rule of Nov. 16, 2020 and OAR 437-001-0744 (permanent May 4, 2021; amended June 30 and Aug. 13, 2021; Ex. DUT-OR-012); 159 citations (Ex. DUT-OR-014) | Schools only, HB 4402: "operating in compliance with COVID-19 emergency rules" (Ex. DUT-OR-008); HB 2638 died (Ex. DUT-OR-009); Shahtout (Ex. DUT-OR-019) | EO 20-25 ¶ 7(c): "Businesses and non-profits must comply with any applicable OHA guidance, including but not limited to guidance for employers" (Ex. OR-017, must comply); EO 20-66 ¶ 2: OHA "binding guidance" (Ex. OR-035); ¶ 2(c) "should" for individuals (rec.) |
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| Pennsylvania | 35 P.S. § 521.5: "shall carry out the appropriate control measures"; § 521.20(a): $25-$300 and thirty days (Ex. DUT-PA-001); 28 Pa. Code §§ 27.60, 27.8 (Ex. DUT-PA-005, Ex. DUT-PA-009); 71 P.S. § 532 (Ex. DUT-PA-002); 71 P.S. § 1409: summary offense (Ex. DUT-PA-007) | 35 Pa.C.S. § 7301: force of law; occupancy of premises (Ex. DUT-PA-003); § 7707 reaches Council plans (Ex. DUT-PA-004); violations charged under 71 P.S. § 1409 and 35 P.S. § 521.20(a) (Ex. DUT-PA-010); Ex. PA-023 § 13 | General Safety Law (Ex. DUT-PA-006); federal duty (Ex. DUT-FED-001); Worker Safety Order, Apr. 15, 2020: "shall implement" (Ex. DUT-PA-008) | None; HB 1737 vetoed Nov. 30, 2020: "[p]roviding immunity for a business that does not rigorously comply with public health orders does not ensure the safety of the public" (Ex. DUT-PA-011, Ex. DUT-PA-012); Ex. PA-023 § 14 immunity "only as related to enforcement of" the face-covering order | Yellow and Green Phase Orders: in-person operations "provided that the businesses fully comply with all substantive aspects of" the safety orders "and all existing and future applicable guidance" (Ex. PA-010, Ex. PA-011, provided that); telework "required ... unless not possible" (Ex. PA-016); "strongly encouraged" (Ex. PA-011, rec.) |
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| Rhode Island | § 23-1-1 (Ex. DUT-RI-001); §§ 23-1-17, -18, -21 (Ex. DUT-RI-002 to Ex. DUT-RI-004); §§ 23-8-4, -18 (Ex. DUT-RI-005, Ex. DUT-RI-007); § 23-1-25: crime, each day separate (Ex. DUT-RI-014); § 23-8-7 (Ex. DUT-RI-006) | § 30-15-7(1) force of law (Ex. DUT-RI-009); § 30-15-9(e)(7), (e)(11) (Ex. DUT-RI-008); § 30-15-21: $500 or ninety days (Ex. DUT-RI-010); ratification to Sept. 1, 2021 (Ex. RI-073) | § 28-20-8 (Ex. DUT-RI-012); § 28-20-7 (Ex. DUT-RI-015); § 28-20-18 to $10,000 (Ex. DUT-RI-013); federal duty (Ex. DUT-FED-001); Safe Activities regulation, May 8, 2020 to Aug. 31, 2021: written COVID-19 Control Plan (Ex. RI-069 to Ex. RI-071); EO 20-24 (Ex. RI-015) | None general; § 30-15-15(a): disaster response worker "complying with, or reasonably attempting to comply with" (Ex. DUT-RI-011); EO 20-21 (Ex. RI-013) | Safe Activities regulation § 7.4(A): covered entities "must take the following steps" (Ex. RI-069, must); EO 20-09 ¶ 3: "must, to the extent practicable, implement CDC guidance" (Ex. RI-006); EO 21-68 ¶ 6: "must comply with applicable executive orders and RIDOH's regulations" (Ex. RI-043) |
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| South Carolina | § 44-1-80(A): "must enforce or prescribe these preventive measures"; § 44-1-150: misdemeanor; civil penalty to $1,000 a day (Ex. DUT-SC-001); § 44-4-500: "must use every available means"; §§ 44-4-300, -530 (Ex. DUT-SC-002); § 44-29 (Ex. DUT-SC-003) | § 25-1-440(a)(1) force of law (Ex. DUT-SC-005); § 1-3-430 (Ex. DUT-SC-006); § 16-7-10(A): misdemeanor, $100 or thirty days (Ex. DUT-SC-004); Attorney General letters (Ex. DUT-SC-017 to Ex. DUT-SC-019) | § 41-15-80(1) (Ex. DUT-SC-007); Regs. 71-108, 71-112 (Ex. DUT-SC-008); federal text (Ex. DUT-SC-013); SC OSHA: "requires employers to provide a safe and healthy workplace ... Employers must ensure social distancing" (Ex. DUT-SC-014); no State COVID rule | Act No. 99 (Apr. 28, 2021; causes from Mar. 13, 2020): immunity only for an entity that "reasonably adheres to public health guidance applicable at the time" (Ex. DUT-SC-009); EO 2021-23 § 2(G) (May 11, 2021) | EO 2020-21 § 1 (Apr. 6, 2020): "The business shall limit the number of customers ... five (5) customers per 1,000 square feet ... or twenty percent (20%)" (shall); EO 2020-50 § 3(A) (Aug. 2, 2020): restaurants "shall be subject to and shall adhere to the following restrictions and conditions of operation"; EO 2021-12 (Mar. 5, 2021): "urge" (rec.) |
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| South Dakota | SDCL 34-22-9, -14, -17; 34-22-18: failure to follow the department's directives in a declared emergency a Class 1 misdemeanor, one year or $2,000 (Ex. DUT-SD-001, Ex. DUT-SD-007); 34-1-17 (Ex. DUT-SD-002); ARSD 44:20 "closure of establishment, exclusion from duty" (Ex. DUT-SD-003); 34-16-1 (Ex. DUT-SD-005); PHE Order 2020-01 (Ex. DUT-SD-004; Ex. SD-090) | Chapter 34-48A carries no offense (Ex. DUT-SD-006; Ex. SD-033); municipal ordinances, Class 2 misdemeanor ceiling (Ex. DUT-SD-008, Ex. DUT-SD-009; Ex. SD-039, Ex. SD-064, Ex. SD-070) | Federal duty (Ex. DUT-SD-012), enforced against Smithfield Sept. 10, 2020 (Ex. AGY-FED-LABOR-IMMIGRATION-031); SDCL 60-2-3, 20-9-1 (Ex. DUT-SD-010, Ex. DUT-SD-011); no State COVID rule | HB 1046 (Feb. 18, 2021): claims barred absent "intentional exposure ... with the intent to transmit COVID-19"; no compliance condition (Ex. DUT-SD-013, Ex. DUT-SD-014) | EO 2020-12 (Apr. 6 to 28, 2020): "All employers ... shall: 6. Implement the recommended CDC hygiene practices and other business strategies ... (staggering shifts, flexible schedules, employee screenings, etc.)" (Ex. SD-009, shall); EO 2020-20 Back to Normal Plan employer provisions (Ex. SD-017, rec.) |
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| Tennessee | § 68-1-201 (Ex. DUT-TN-001); § 68-5-104: isolate or quarantine "the case or premise"; Class B misdemeanor (Ex. DUT-TN-002); § 68-2-609 closure (Ex. DUT-TN-003); §§ 68-2-603, 68-5-103 (Ex. DUT-TN-004, Ex. DUT-TN-012); Rule 1200-14-01-.15 "closure of establishment" (Ex. DUT-TN-005) | § 58-2-107(a)(2): force of law; occupancy of premises (Ex. DUT-TN-006); § 58-2-120: Class A misdemeanor (Ex. DUT-TN-007); EO 77 (Feb. 26, 2021) | § 50-3-105 (Ex. DUT-TN-008); Rule 0800-01-01-.06 (Ex. DUT-TN-009); § 50-3-403 (Ex. DUT-TN-011); no State COVID rule | COVID-19 Recovery Act (Aug. 17, 2020): gross negligence or willful misconduct; "arising from COVID-19" includes "implementing policies and procedures to prevent or minimize the spread of COVID-19"; no compliance clause (Ex. DUT-TN-010) | EO 30 ¶ 6 (Apr. 28, 2020): "Facilities shall follow the Health Guidelines and any other infection control policies or guidance set forth by the Department of Health"; ¶ 5: "Employers shall not require or allow employees with COVID-19 to work" (shall; to Feb. 27, 2021); Tennessee Pledge general guidelines (Apr. 28, 2020): "should" (rec.; mandatory in Shelby County under Health Order and Directive No. 8, July 8, 2020) |
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| Texas | H&S Code § 81.002: "Each person shall act responsibly to prevent and control communicable disease" (Ex. DUT-TX-001); §§ 81.081, 81.082 (Ex. DUT-TX-002); §§ 81.083, 81.084 (Ex. DUT-TX-003, Ex. DUT-TX-004); § 121.024 (Ex. DUT-TX-007); § 81.087: Class B misdemeanor (Ex. DUT-TX-006); § 81.085(h): third-degree felony (Ex. DUT-TX-005); Penal Code (Ex. DUT-TX-019) | Gov't Code § 418.012 force of law (Ex. DUT-TX-010); §§ 418.018(c), 418.108(g) (Ex. DUT-TX-011); § 418.173: $1,000 and 180 days (Ex. DUT-TX-012), recited in every general order; In re Abbott (Ex. DUT-TX-021); Ex. TX-047 | Lab. Code § 411.103: "reasonably safe and healthful"; "methods of sanitation and hygiene"; "all other actions reasonably necessary" (Ex. DUT-TX-013); federal duty (Ex. DUT-FED-001); Medical Board rule 22 TAC § 190.8(2)(U) and Dental Board Rule 108.7 (Ex. AGY-ST-HEALTH-BOARDS-046; Ex. TX-054, Ex. TX-055) | SB 6 (June 14, 2021; actions from Mar. 13, 2020); CPRC § 148.003(a)(1)(B): liability only where the business "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols" (Ex. DUT-TX-014, Ex. DUT-TX-015) | GA-28 (June 26, 2020): "Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy" (shall); GA-29 (July 2, 2020): "shall wear a face covering"; GA-32 (Oct. 7, 2020): "must be followed"; DSHS protocols "should" (Ex. TX-011; GA-21, May 5, 2020; rec.); GA-34 (Mar. 2, 2021): "strongly encouraged" from Mar. 10, 2021 (rec.) |
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| Utah | § 26-1-30: "establish, maintain, and enforce isolation and quarantine ... physical control over property and individuals"; "close ... public places" (Ex. DUT-UT-001); § 26-6-3 (Ex. DUT-UT-002); § 26A-1-114 (Ex. DUT-UT-004); § 26-6b-3 (Ex. DUT-UT-006); § 26-23-6: class B misdemeanor; civil penalty to $10,000 per violation per day (Ex. DUT-UT-003); § 26A-1-123 (Ex. DUT-UT-005) | § 53-2a-209(1): "full force and effect of law" (Ex. DUT-UT-008); § 53-2a-204 (Ex. DUT-UT-009); no Act penalty; concurrent UDOH orders under § 26-23-6 (Ex. UT-031; UPHO 2020-25, Nov. 20, 2020) | § 34A-6-201(1) (Ex. DUT-UT-011); § 34A-6-307 (Ex. DUT-UT-012); R614-1-5.F (Nov. 9, 2020): "every employee shall be required to wear a face mask while that employee is at work" (Ex. DUT-UT-018, Ex. DUT-UT-019) | SB 3007 (May 4, 2020), § 78B-4-517: except willful, reckless or intentional conduct; preserves the UOSH Act; no compliance clause (Ex. DUT-UT-013, Ex. DUT-UT-014) | EO 2020-19 § 2 (Apr. 29, 2020): "individuals and businesses in Utah shall comply with the Orange ... provisions of the Phased Guidelines" (shall comply; continued by EO 2020-22, May 15, 2020, and EO 2020-50, Aug. 14, 2020); UPHO 2020-25 § 5 (Nov. 20, 2020): "a business shall: i. require each employee and contractor to wear a face mask while at work"; Phased Guidelines v4.1 (May 6, 2020): "must"/"should" as written |
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| Virginia | §§ 32.1-13, -20; § 32.1-27: Class 1 misdemeanor; civil penalty to $25,000 per violation per day (Ex. DUT-VA-001); §§ 32.1-42, -43, -48 (Ex. DUT-VA-002); 12VAC5-90 (Ex. DUT-VA-003) | § 44-146.17: force of law; Class 1 misdemeanor where the order so declares (Ex. LAW-347); § 18.2-11: twelve months and $2,500 (Ex. DUT-VA-004); Orders of Public Health Emergency One (Mar. 17, 2020) and Two (Mar. 25, 2020) recited § 32.1-27 | § 40.1-51.1(A): "It shall be the duty of every employer to furnish ... a place of employment that is free from recognized hazards" (Ex. DUT-VA-005); § 40.1-49.4 to $124,709 (Ex. DUT-VA-006); § 40.1-22(6a) (Ex. DUT-VA-007); 16VAC25-220 ETS, July 27, 2020; permanent Jan. 27, 2021; amended Sept. 8, 2021 | Health care only, § 8.01-225.03 (Ex. DUT-VA-009, Ex. DUT-VA-010); EO 60 (Ex. DUT-VA-011); § 32.1-48.016 (Ex. DUT-VA-002); no business shield | EO 61 (May 8, 2020): personal care and grooming establishments "may reopen, provided such businesses comply with the Guidelines for All Business Sectors and the sector-specific guidelines for personal care and personal grooming services expressly incorporated by reference herein" (provided ... comply; carried by EO 72, Dec. 10, 2020, to May 28, 2021); guidelines: "Establishments must either implement the following mandatory requirements or close" (Ex. DUT-VA-014, Ex. DUT-VA-015) |
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| Vermont | 18 V.S.A. § 126: orders to "any person responsible for contributing to the public health hazard"; closure; prohibition of assemblage (Ex. DUT-VT-001); § 127 (Ex. DUT-VT-002); § 1004a (Ex. DUT-VT-005); §§ 602a, 613 (Ex. DUT-VT-008, Ex. DUT-VT-009); § 1418 employer PPE orders (Ex. DUT-VT-010); § 130: $10,000 per violation per day (Ex. DUT-VT-003); § 131: $5,000 per day; $25,000 or six months (Ex. DUT-VT-004) | 20 V.S.A. § 9 (Ex. DUT-VT-011); § 24: $500 or six months (Ex. DUT-VT-012); § 40 (as in force 2020-2021): $1,000 per violation per day; Club Fitness suit (Ex. DUT-VT-018 to Ex. DUT-VT-020) | 21 V.S.A. § 223(a) (Ex. DUT-VT-014); § 210 to $126,749 (Ex. DUT-VT-015); § 224 (Ex. DUT-VT-016); VOSHA Healthcare ETS, July 13, 2021 (Ex. DUT-VT-017) | Emergency management activities only, 20 V.S.A. § 20 (Ex. DUT-VT-013); Addendum 9 (Apr. 10, 2020) for health care; no business shield | Amended and Restated EO 01-20 § 9(b) (June 15, 2020): "shall only operate in accordance with the occupancy limits and physical distancing, health and sanitation and training requirements set forth in ACCD Work Safe Guidance"; non-compliant entities "shall suspend in-person business operations" (shall only operate); Addenda 10-12 (Apr. 17 to May 1, 2020): "shall"/"must"; Guidance "MANDATORY" (Ex. DUT-VT-006) |
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| Washington | RCW 70.05.070, .060 (Ex. DUT-WA-001, Ex. DUT-WA-003); 43.20.050 (Ex. DUT-WA-004); 43.70.130 (Ex. DUT-WA-005); WAC 246-100 (Ex. DUT-WA-006); WAC 246-101-425: public to "cooperate with ... implementation of infection control measures" (Ex. DUT-WA-007); RCW 70.05.120(4): misdemeanor (Ex. DUT-WA-002); Order 20-03 (Ex. WA-037) | RCW 43.06.220(5): gross misdemeanor (Ex. LAW-340; Ex. DUT-WA-008); 38.52.150 (Ex. DUT-WA-009); Slidewaters (Ex. DUT-WA-020) | RCW 49.17.060 (Ex. DUT-WA-010); WAC 296-800-110, -140 (Ex. DUT-WA-011, Ex. DUT-WA-012); WAC 296-800-14035 (May 26, 2020 through Q3 2021): "Employers must comply with all conditions for operation required by emergency proclamation" (Ex. AGY-ST-LABOR-WORKPLACE-078); DOSH Directive 1.70 (Ex. DUT-WA-017, Ex. DUT-WA-018); HELSA (Ex. AGY-ST-LABOR-WORKPLACE-008) | None enacted; RCW 5.40.050: breach of statute or rule is evidence of negligence (Ex. DUT-WA-013) | Proclamation 20-25.6 (July 7, 2020): "No employer may operate, allow a customer to enter a business, conduct business, or employ employees unless the employer ... complies with all public health authority orders and directives" (no employer may ... unless; to 20-25.13); 20-25: "prohibited from operating ... unless" (Ex. WA-016); Washington Ready sheet "Recommended, but not required" (Ex. WA-101, rec.) |
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| Wisconsin | § 252.02 (Ex. DUT-WI-001); § 252.03: "shall promptly take all measures necessary" (Ex. DUT-WI-002); § 252.06 (Ex. DUT-WI-003); DHS 145.06: owners "to do what is reasonable and necessary to abate the threat of transmission" (Ex. DUT-WI-010); §§ 254.01, 254.59 (Ex. DUT-WI-011, Ex. DUT-WI-009); § 252.25: thirty days or $500 (Ex. DUT-WI-004) | § 323.12(4)(b) (Ex. DUT-WI-005); § 323.28: forfeiture to $200 (Ex. DUT-WI-006); EOs #12, #28 recited § 252.25 (Ex. WI-002, Ex. WI-003); Becker v. Dane County (Ex. WI-024) | § 101.11(1) safe-place statute: "safe for employees therein and for frequenters thereof ... every other thing reasonably necessary" (Ex. DUT-WI-007); §§ 101.01(13), 101.02(13) (Ex. DUT-WI-012); § 101.055 (Ex. DUT-WI-018); federal duty; no State COVID rule | 2021 Act 4, § 895.476 (from Mar. 1, 2020): reckless or wanton conduct or intentional misconduct; no guidance condition (Ex. DUT-WI-008); Act 185, § 895.4801: providers "substantially consistent with" official guidance (Ex. WI-032) | EO #12 § 2: "Essential Businesses and Operations shall comply with Social Distancing Requirements," § 16 "following all other public health recommendations issued by DHS and the U.S. Centers for Disease Control" (Ex. WI-002, shall comply); EO #28 (Ex. WI-003); Forward Dane (Ex. MET-MKE-006); EO #94 "recommend[s]" (Ex. WI-013, rec.) |
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| West Virginia | § 16-3-1: "establish and strictly maintain quarantine," "forbid and prevent the assembling of the people in any place," "by detention and arrest" (Ex. DUT-WV-001); §§ 16-2-11, -13 (Ex. DUT-WV-003, Ex. DUT-WV-004); § 16-1-6 (Ex. DUT-WV-006); 64 CSR 7 (Ex. DUT-WV-015); § 16-3-2: $25-$200 (Ex. DUT-WV-002); § 16-2-15: $200-$1,000 (Ex. DUT-WV-005); § 16-1-18 (Ex. DUT-WV-007) | § 15-5-6(g)(6): "movement of persons and occupancy of premises"; § 15-5-17; § 15-5-18 warrantless arrest (Ex. DUT-WV-008, Ex. DUT-WV-009); § 61-5-17: $50-$500 or one year (Ex. DUT-WV-010); Morgantown ordinance (Ex. DUT-WV-030) | § 21-3-1: "reasonably safe"; "safe" includes "conditions and methods of sanitation and hygiene reasonably necessary for the protection of ... employees or the public" (Ex. DUT-WV-011); § 21-3-14: misdemeanor each day (Ex. DUT-WV-012); federal duty (Ex. DUT-WV-031); no State COVID rule | SB 277 (Mar. 19, 2021; retroactive to Jan. 1, 2020), §§ 55-19-1 to -9: yields only to "intentional conduct with actual malice"; protected conduct is "Implementing policies and procedures designed to prevent or minimize the spread of COVID-19"; no compliance condition (Ex. DUT-WV-013, Ex. DUT-WV-014) | EO 9-20 § 2: "must ensure that proper social distancing and hygiene practices are maintained" (Ex. DUT-WV-021; Ex. WV-009, must); EO 32-20: "must limit occupancy ... to no more than two (2) individual members of the public per 1,000 square feet" (Ex. DUT-WV-023); EO 77-20: "shall require compliance ... and shall enforce the same on their premises" (Ex. DUT-WV-027); guides "must"/"should" item by item (Ex. DUT-WV-018 to Ex. DUT-WV-020) |
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| Wyoming | W.S. 35-1-240(a): "establish, maintain and enforce isolation and quarantine"; "physical control over property"; "close ... public places" (Ex. DUT-WY-003); 35-4-101 to -105 (Ex. DUT-WY-004); 35-4-109, -110 (Ex. DUT-WY-005); 35-1-105(a)(i): no "person, corporation or other organization" shall "Willfully violate, disobey or disregard ... any lawful notice, order, rule or regulation"; 35-1-106: $1,000 or one year (Ex. DUT-WY-002) | Title 19, ch. 13 carries no offense (Ex. DUT-WY-011, Ex. DUT-WY-012); every order recited W.S. 35-1-105 and 35-1-106 (Ex. WY-004 to Ex. WY-058; Ex. DUT-WY-021 to Ex. DUT-WY-031) | § 27-11-105(b)(vi): "free from recognized hazards" (Ex. DUT-WY-014); § 27-11-107; no State COVID rule (WYOSHA compilations recorded as recommendations, Ex. DUT-WY-015 to Ex. DUT-WY-017) | § 35-4-114(a) (in force by May 20, 2020): immunity for "any ... person, including a business entity, who in good faith follows the instructions of a state, city, town or county health officer" (Ex. DUT-WY-006, Ex. DUT-WY-010); SEA 57 (Apr. 6, 2021): § 1-1-141 presumption; gross negligence floor (Ex. DUT-WY-008, Ex. DUT-WY-009) | Statewide Public Health Orders: "must be screened"; "must wear face coverings"; "shall perform hand hygiene"; "must post notices"; long-term care exempt only "as long as the facility complies with guidance and directives from the CDC" (Ex. DUT-WY-021 to Ex. DUT-WY-031; Ex. WY-004 to Ex. WY-050, must/shall); WDH guidance "recommends" (Ex. DUT-WY-019, Ex. DUT-WY-020, Ex. DUT-WY-032, rec.) |
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The counts from the table are these. Every one of the fifty-one jurisdictions has a communicable-disease control statute with a penalty for disobeying control measures (51 of 51); every one has an offense that reached violation of the pandemic orders, in forty through the emergency act and in eleven through the health code or municipal law where the emergency act carried no penalty (51 of 51); every one has a workplace-safety duty binding every private employer, federal in all fifty-one and State-enacted in forty-seven (51 of 51); twenty-eight have a COVID-19 workplace rule with its own force of law (Alaska, California, Colorado, Connecticut, the District of Columbia, Hawaii, Iowa, Illinois, Kentucky, Massachusetts, Maryland, Michigan, Minnesota, North Carolina, North Dakota, New Hampshire, New Jersey, New Mexico, Nevada, New York, Oregon, Pennsylvania, Rhode Island, Texas, Utah, Virginia, Vermont and Washington); nineteen enacted a general business shield conditioned on compliance with governmental standards, guidance, orders or protocols (Alaska, Alabama, Arkansas, Arizona, Florida, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, North Dakota, Nebraska, Nevada, Oklahoma, South Carolina, Texas and Wyoming); eleven set a culpability floor without a compliance clause (Georgia, Idaho, Indiana, Missouri, North Carolina, Ohio, South Dakota, Tennessee, Utah, Wisconsin and West Virginia); thirteen shielded health-care providers or emergency actors only, on compliance conditions (Connecticut, the District of Columbia, Hawaii, Massachusetts, Maryland, Maine, New Hampshire, New Jersey, New York, Oregon, Rhode Island, Virginia and Vermont); and eight enacted none (California, Colorado, Delaware, Illinois, Minnesota, New Mexico, Pennsylvania and Washington). In every jurisdiction, on every day of the six quarters, at least three commands reached every employer that distanced its floor, screened its workers, sanitized its premises, capped its occupancy, masked its staff or sent its office home: the order's own condition of operating, the standing statute or rule that commanded the same conduct under penalty, and, in thirty States, the shield that protected only the complying business, with the general duty clause and the ordinary standard of care everywhere else. Each is an order from an appropriate governmental authority on the Suspension Clause's own terms. An employer that distanced, screened, sanitized and masked in that environment was not choosing; it was complying.