The interconnected economy and the broken leg
A construction or specialty trade employer builds for every other industry and for every level of government, buys from mills, plants and ports in other States and countries, permits and records through public counters, hires through boards and consulates, and moves its crews through transit and across borders. An order on any of those is an order limiting commerce, travel or group meetings, and an operation of this industry delayed, interrupted or terminated because of it is suspended due to it. The orders of 2020 and the first half of 2021 compelled this industry to dismantle its operation; the orders' own reopening steps show that the restoration ran into and through the third quarter of 2021; and the clause's grammar, Tri-State's definition and the Notice's own words make the continuing suspension a suspension "during the calendar quarter." The general analysis is at The interconnected economy and Continuing suspension; this section applies it to construction.
The mechanisms
Six mechanisms carried orders addressed to others into this industry's operation. Supply chain and borders: the closures of sawmills, wood product plants and lumber wholesalers in Pennsylvania, of paint, flooring and garden departments in Michigan, and of manufacturing outside critical infrastructure in a dozen States removed the industry's materials at their source; the Defense Production Act orders allocated respirators; the land-border notifications, the Captain of the Port conditions and CDC face-covering requirement the Coast Guard enforced at the ports and on vessels, and the Federal Maritime Commission's orders conditioned every import; the price rules bound every distributor; and the Census Bureau and the Federal Reserve recorded the resulting delays and shortages through September 2021.218 Workforce, schools and child care: the school closures of the spring of 2020 and the remote openings of the fall of 2020, the child-care closures, the FFCRA leave mandate through December 31, 2020, the State paid-leave mandates through the third quarter of 2021 and the quarantine and isolation orders of the States and counties removed crew members from sites by law.219 Travel and gatherings: the interstate and intrastate quarantines, the tribal road closures and curfews, and the gathering caps of every State confined the crews and the meetings through which work is won.220 The Library's meetings collection sets out those gatherings, from the national shows to the bid openings and toolbox talks, with the orders that governed their venues in each year. Courts and public offices: the orders of the courts, clerks and recorders converted or closed the venues through which liens are perfected, permits issued and payment disputes resolved.221 Transit: the transit agencies' service cuts and rider caps of 2020 and the federal conveyance, security-directive and railroad orders of 2021 conditioned every commute.222 Health care as counterparty: the elective-procedure suspensions of 2020 stopped hospital fit-outs, and the Healthcare ETS and the health-care-worker vaccination orders of 2021 conditioned every trade's entry into a hospital or nursing home.223
Counterparty orders as orders
The statute's object is "commerce, travel, or group meetings," not the employer's premises. The Notice's Q&A-12 applies the clause exactly so, making an employer eligible where its "suppliers are unable to make deliveries of critical goods or materials due to a governmental order that causes the supplier to suspend its operations," and the United States told the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party (such as an order that suspends the operations of a supplier of the business)," a rule that "never even mentions a 'physical[ ] clos[ure]' order against the supplier."224 The supplier of a framing contractor is the sawmill Pennsylvania closed; the supplier of a painting contractor is the paint department Michigan closed; the supplier of an electrical contractor is the fixture plant behind a closed border; the supplier of every contractor is the owner whose project the owner's own closure order suspended, the building department whose counter the city closed and the recorder whose deeds ran only from title companies. Each was closed or conditioned by order, and the operations that depended on it were suspended in part because of the order in the only sense the statute uses. The Service's memorandum of June 30, 2023 converts Q&A-12 into "a narrow, limited exception," requires an order that applies to the employer, adds an alternate-supplier element and demands the supplier's order from the employer's files; none of those words is in Q&A-12, the premise of Q&A-12 is that the order applied to someone else, the United States has accepted that suffices, and AM 2023-005 itself recites that it "may not be used or cited as precedent."225
The textual point
The clause reads "is fully or partially suspended during the calendar quarter due to orders." The phrase "during the calendar quarter" modifies "suspended"; it asks whether the suspension existed at any time in the quarter, not whether an order was issued in or addressed to the quarter. Congress did not write "orders in effect during the calendar quarter."226 Tri-State holds that a suspension includes a "delay" and that causation is but-for.227 The Notice recognizes both propositions: Q&A-22 makes an employer whose suspension ends in the middle of a quarter eligible for the whole quarter, and Q&A-16 treats "a significant delay (for example, beyond 2 weeks)" in moving between modes of operation as part of the suspension.228 A site ordered closed on March 19, 2020, permitted to reopen at four persons on May 1, 2020, held thereafter under the Worker Safety Order's and the Mitigation and Enforcement Orders' compelled site conditions until May 31, 2021, and manned by a crew that the closure order dispersed and the compelled conditions kept from re-forming, was delayed by those orders on every day between, and the delay did not end on the day the last order expired.
The restoration arithmetic for this industry
What the orders compelled this industry to dismantle is recorded in the orders themselves. Crews: Pennsylvania, New Jersey, Michigan, Washington, Vermont, New York, Boston, Philadelphia, New York City and the Bay Area ordered sites closed or confined to essential projects between March 17 and April 10, 2020; construction employment fell by 975,000 in April 2020, 691,000 of them in the specialty trades.229 Reopening steps: Vermont at crews of two (April 20), five (April 27), ten (May 4) and full (May 11); Washington at "low-risk" work only (April 24) and then by phase to June 30, 2021; Pennsylvania at four persons per residential site and four per 2,000 square feet (May 1, 2020; Ex. SEC-09-008, incorporated in the Yellow Phase order and superseded by the general mitigation orders), then under the Worker Safety Order (Ex. PA-008) and, from November 27, 2020, the Mitigation and Enforcement Orders (Exs. PA-022, PA-023) to May 31, 2021 (Exs. PA-035, PA-036); Philadelphia under a Site Safety Manager (May 1); the Bay Area under a supervisor "at all times" (May 4, 2020 to June 15, 2021); Boston in three categories (May 5, 18 and 26) under an affidavit; Michigan under supervisors, screening and choke points (May 7, 2020), then MIOSHA (October 14, 2020 to June 22, 2021); New York by region (May 15 and June 8, 2020) under a Site Safety Plan to June 15, 2021, then under a HERO plan from August 5, 2021; New Jersey under dictated policies (May 18, 2020), then Executive Order No. 192 (November 5, 2020), whose worksite requirements Executive Orders Nos. 242 and 243 carried through the period.230 Owners and permits: every owner in a closed sector kept its project suspended for the life of its own order, and the building departments and recorders reopened by appointment and affidavit through 2020 and 2021.231 Supply: the Census Bureau found 58.5 percent of construction small businesses reporting domestic supplier delays in July 2021, and the Federal Reserve's Beige Books of July 14 and September 8, 2021 and its Monetary Policy Report of July 9, 2021 recorded the shortages of lumber, steel and building materials.232 Workforce: the Bureau of Labor Statistics reported on October 8, 2021 that construction employment stood 201,000 below its February 2020 level.233 The industry's own restoration therefore ran, on the orders' own dates, from May 2020 to June 30, 2021 in the regime States and past September 30, 2021 in the standard States, and the crews, subcontractor schedules, owner projects, permits and materials the orders dismantled were not restored on the day the last cap lifted.
What was still in force when the general restrictions ended
When the last construction site regimes ended between May 29 and June 30, 2021, the following remained in force and are stated as the orders they are: the Cal/OSHA, Virginia, Oregon and Washington workplace standards; New Jersey's Executive Order No. 192 as continued; New York's HERO Act, with plans due August 5 and activation September 6, 2021; Executive Order 13991 and, from July 29, 2021, the Task Force's attestation and testing principles; the CDC conveyance order, the TSA directives and the railroad order; the entry proclamations and land-border notifications; the Healthcare ETS; the Captain of the Port conditions and the face-covering requirement the Coast Guard enforced at the ports, and the scarce-materials designation; the court orders of the United States and of at least twenty-nine States; the emergency declarations of thirty-five States on July 2 and twenty-five on September 21, 2021; the Delta-wave face-covering, emergency and vaccination orders of July through September 2021, including Executive Order 14042; the school masking and quarantine orders of the autumn; the licensing waivers and notarial regimes; and the tribal and territorial orders.234 The third-quarter inventory states them with dates. They are not the residue of a suspension; they are orders limiting commerce, travel and group meetings in force during the calendar quarter.