The governmental orders by layer
Between March 13, 2020 and September 30, 2021 this industry operated under six layers of orders from appropriate governmental authorities: the federal layer (emergency predicates, entry and border suspensions, the conveyance mask order and security directives, the FFCRA leave mandate, the eviction moratoria and the OSHA standard); the fifty States and the District, every one of which closed the industry's facilities by name or by gathering prohibition in March 2020 and thirty-seven of which still capped them on March 31, 2021; the largest metropolitan areas, whose health officers, mayors and county judges closed earlier, reopened later and reinstated orders in August and September 2021; the sector regulators (gaming commissions, park and fair authorities, State health departments' sector rules and interscholastic bodies); the counterparties (schools, park districts, convention authorities, courts, transit agencies and landlords); and the ecosystem of foreign, border and workforce orders; and beneath all six lay the standing duties of statute, rule and liability shield that bound every employer whether or not any order named it. This section inventories each layer with exhibit identifiers; the six-quarters section applies them quarter by quarter; the tables on this page tabulate them.
The universe
The published trackers record the following. The COVID AMP dataset records nearly 50,000 policy measures worldwide between January 2020 and June 2022, over 20,000 of them United States national- and State-level policies (95 percent issued before November 23, 2021), with approximately 8,000 United States county policies and 1,400 tribal-area policies coded in addition.15 The Centers for Disease Control and Prevention's Morbidity and Mortality Weekly Report of September 4, 2020 records that 42 States and territories issued mandatory stay-at-home orders between March 1 and May 31, 2020, affecting 2,355 of the nation's 3,233 counties (73 percent), that "most jurisdictions issued multiple orders," and that the first mandatory order to end was Alaska's on April 24, 2020 while eight jurisdictions extended theirs beyond May 31.16 The Department of Health and Human Services' policy-orders dataset records 4,218 State and county policy-order entries between March 23, 2020 and August 31, 2021, 1,707 of them State actions and 2,511 county actions across 56 State and territory codes and 794 counties in 35 States.17 Ballotpedia, working from Council of State Governments data, counts 2,065 executive orders of governors and State agencies between February and June 29, 2020, records that 43 governors issued stay-at-home or non-essential-closure orders and seven did not (Arkansas, Iowa, Nebraska, North Dakota, South Dakota, Utah and Wyoming), that 39 States imposed statewide face-covering requirements, airborne-transmission controls on every indoor public space, and five reinstated them after expiry, that 27 States and the District enacted travel restrictions, that all fifty States declared emergencies, and that on September 21, 2021 twenty-five State emergencies and eleven statewide face-covering requirements were in force.18 The plaintiff in Stenson Tamaddon, LLC v. IRS told the Ninth Circuit, on the record made below, that "[a] network of more than 4,200 orders at the state and local level limited most businesses," and the Department of Health and Human Services' own dataset records 4,218 State and county policy-order entries.19
The Library
The Library is a curated set of instruments, not a census. For this industry it holds the State files for all fifty States and the District, metro files for thirty-seven metropolitan areas, the federal file, the agency files for gaming and racing, agriculture, parks and wildlife, federal lands, science and courts, local districts and authorities, tribal governments and the territories, the ecosystem files, the sector file and the legal folder. Each exhibit is indexed with issuer, instrument, dates, in-force quarters, limitation types, grade and retrieval route, and this page cites only instruments verified from the issuing authority or from an identifiable secondary source; an instrument the record has not verified is not named.20 The sector file records the closure instrument, reopening steps, winter re-tightening, spectator rules, end date and third-quarter 2021 instruments for all fifty-one jurisdictions; the fifty-State table on this page reproduces it.
The federal layer
The predicates
The President declared a national emergency "beginning March 1, 2020" by Proclamation 9994 of March 13, 2020 and continued it on February 24, 2021; the Secretary of Health and Human Services determined a nationwide public health emergency on January 31, 2020 and renewed it every ninety days, including on July 19, 2021 for the quarter that followed; the President's Stafford Act emergency determination of March 13, 2020 covered every State and territory.21 These declarations are the predicates on which every federal order below rests and on which every State's emergency powers were exercised; the Notice's own rule is that a declaration that "limits commerce, travel, or group meetings" in a manner that relates to the suspension of an employer's operation is a governmental order, and this analysis treats the declarations as predicates and the instruments issued under them as the orders.22
The second and third quarters of 2020
On March 16, 2020 the President's Coronavirus Guidelines for America called for gatherings of more than ten persons to be avoided and for bars, restaurants, food courts, gyms and "other indoor and outdoor venues where groups of people congregate" to be closed in States with evidence of community transmission, guidance the States' orders implemented and that was extended through April 30, 2020 and replaced on April 16 by the three-phase Guidelines for Opening Up America Again, under which large venues, gyms and bars were to remain closed or operate under "strict physical distancing protocols" in Phase One and Two.23 The Department of Homeland Security's essential-workforce guidance of March 19, 2020, adopted by reference in the closure orders of more than thirty States, listed no category of this industry.24 The Department of State suspended routine visa services worldwide on March 20, 2020; Proclamation 9984 and its successors suspended entry from China, Iran, the Schengen Area, the United Kingdom, Ireland and Brazil; the land borders with Canada and Mexico were closed to non-essential travel from March 21, 2020 by notices renewed monthly; the CDC's Title 42 order of March 20, 2020 suspended the introduction of certain persons at the land borders; the No Sail Order of March 14, 2020 stopped every cruise; and Proclamations 10014 and 10052 suspended the entry of immigrants and of H-1B, H-2B, L-1 and J-1 nonimmigrants from April 23 and June 24, 2020, Proclamation 10014 until its revocation on February 24, 2021 and Proclamation 10052 until March 31, 2021, admitting foreign performers and athletes only under case-by-case national-interest exceptions.25 The Families First Coronavirus Response Act required every employer of fewer than five hundred to provide paid sick leave and expanded family leave to employees quarantined, symptomatic or caring for a child whose school or place of care was closed, from April 1 through December 31, 2020.26 Federal agencies moved to maximum telework on March 17, 2020 and stayed there under the gating framework of April 20, 2020.27 The National Park Service closed Yellowstone, Grand Teton, Yosemite, Great Smoky Mountains, the Statue of Liberty and Ellis Island, the Bureau of Reclamation closed Hoover Dam, the Bureau of Land Management closed its developed recreation sites in Oregon, the federal museums and the National Zoo in Washington closed to the public, and the National Archives closed its research rooms and presidential libraries, each between March 13 and March 27, 2020 (closures evidenced by the agencies' own announcements, which are cited as context for the closures and not as orders), removing the destinations around which the tour, hospitality and recreation trade of entire regions is organized.28 The CDC's eviction moratorium of September 4, 2020 stayed residential evictions nationwide through December 31, 2020, then by extension through July 31, 2021 and, for counties of substantial or high transmission, through October 3, 2021.29
The fourth quarter of 2020 and the first quarter of 2021
The CDC's Framework for Conditional Sailing of October 30, 2020 kept every cruise ship out of revenue service; the entry proclamations and land-border notices continued; the CDC's pre-departure testing order of January 26, 2021 conditioned every international arrival; Proclamation 10143 of January 25, 2021 re-imposed the Schengen, United Kingdom, Ireland and Brazil suspensions and added South Africa; and on February 1, 2021 the CDC's conveyance mask order took effect at 11:59 p.m., an airborne-transmission control on every conveyance and transportation hub in the country, requiring a mask of every person on every aircraft, train, bus, ferry, rideshare and transit vehicle and in every airport, station and terminal in the United States, enforced by the Transportation Security Administration's Security Directives of January 31, 2021 with civil penalties.30 Executive Order 13991 of January 20, 2021 and OMB Memorandum M-21-15 of January 24, 2021 imposed workplace infection-prevention and exposure-control requirements in every federal building, face coverings and distancing among them, and capped federal occupancy at twenty-five percent.31
The second and third quarters of 2021
On the first day of the third quarter of 2021 the following federal instruments were in force and reached this industry: the conveyance mask order (Ex. FED-020) with TSA Security Directive SD 1582/84-21-01A (effective May 12, expiring September 13, 2021) and, from September 14, 2021, SD 1582/84-21-01B (to January 18, 2022) (Ex. FED-051; Ex. FED-052), governing every touring crew, visiting team, official, instructor and patron who travelled by air, rail or transit; Proclamations 10143 and 10199 (Ex. FED-207; Ex. FED-208), suspending the entry of most travellers from the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa, India, China and Iran until Proclamation 10294 lifted them on November 8, 2021 (Ex. FED-209); the land-border notices of June 23, July 22, August 23 and September 22, 2021 (Ex. FED-232; Ex. FED-233; Ex. FED-234; Ex. FED-235; Ex. FED-255; Ex. FED-256; Ex. FED-257; Ex. FED-258), barring non-essential entry from Canada and Mexico through October 21, 2021, so that no cross-border patron, performer or team could enter by land; the Title 42 order as reassessed August 2, 2021 (Ex. FED-034; Ex. FED-038); the pre-departure testing order (Ex. FED-042); the CDC eviction moratorium for counties of substantial or high transmission from August 3 to October 3, 2021 (Ex. FED-026), a stay on the landlords of this industry's members and staff; the OSHA Healthcare Emergency Temporary Standard of June 21, 2021 (Ex. FED-080), reaching the industry at on-site clinics and athletic-training rooms staffed by health-care personnel, and the Revised National Emphasis Program of July 7, 2021 (Ex. FED-083), which directed inspections of high-hazard workplaces including those of this industry's amusement and recreation classifications; the federal workplace face-covering and exposure-control reinstatement of July 28-29, 2021 (Ex. FED-272) and Executive Orders 14042 and 14043 of September 9, 2021 (Ex. FED-063; Ex. FED-064), reaching every federally contracted venue, food-and-beverage operator and park operator; the Conditional Sailing Order in force to November 1, 2021 (Ex. FED-031; Ex. ECO-C-140); and, as context rather than as an order, the National Park Service's announcement that Yosemite would admit day-use visitors only by reservation from May 21 through September 30, 2021 (Ex. AGY-FED-LANDS-SCIENCE-COURTS-043; a service announcement, cited as evidence of the operating conditions at the destination of the tour operators, outfitters and recreation employers of an entire region).32 Each is stated with issuer, date, operative clause, enforcement and status in the third-quarter-2021 section below.
The fifty States
The pattern
Every State and the District closed this industry's facilities between March 16 and April 3, 2020: forty-seven by statewide order naming gyms and fitness centers, movie theaters, live-performance venues, bowling alleys, arcades and amusement facilities, and Missouri, South Dakota, Utah and (for gyms) Nebraska by statewide gathering prohibitions and county or city closure orders with the same operative effect.33 Reopening began April 24, 2020 in Georgia and reached the Northeast, the West Coast and the largest Midwestern States only in late June or later; no facility anywhere reopened without a capacity cap of twenty-five to fifty percent, a class or reservation condition, closed locker rooms, saunas and child care, and distancing of six to fourteen feet, and live-audience sport was barred or capped at ten percent everywhere. Thirty-one States and the District re-closed, re-capped or re-tightened the industry between November 13 and December 26, 2020, twenty-two of them and the District by re-closure or capacity order. On March 31, 2021 capacity or gathering orders reaching gyms, theaters or venues were in force in thirty-seven jurisdictions. The withdrawal ran from Indiana on April 6, 2021 to Rhode Island on July 6, 2021; on June 30, 2021 statewide caps remained in Washington, Oregon, New Mexico and Hawaii; and Hawaii re-capped the industry on August 10, 2021.34 What follows states the lead instruments by region; the fifty-State table on this page carries every jurisdiction's row.
The Northeast
New York closed gyms, fitness centers and classes, movie theaters and casinos at 8:00 p.m. on March 16, 2020 by Executive Order 202.3 and every indoor amusement, bowling alley and arcade at 8:00 p.m. on March 19 by Executive Order 202.5; permitted indoor arts and entertainment at twenty-five percent in Phase Four from June 26, 2020, gyms at thirty-three percent from August 24 (September 2 in New York City, on attestation and inspection, with indoor classes prohibited), casinos and New York City malls from September 9, movie theaters outside the City at twenty-five percent or fifty per screen from October 23, 2020 and statewide from March 5, 2021, indoor family entertainment from March 26 and outdoor amusement from April 9, 2021, indoor fitness classes from March 22 and event venues at thirty-three percent from April 2, 2021; imposed cluster-zone closures from October 6, 2020, a 10:00 p.m. closing hour from November 13, 2020 and orange-zone gym closures from December 14, 2020; ended percentage caps on May 19, 2021 and rescinded the series on June 25, 2021.35 New Jersey closed gyms, theaters, casinos and amusement facilities at 8:00 p.m. on March 16, 2020 by Executive Order 104 and every business outside the essential list on March 21 by Executive Order 107; permitted outdoor organized sports without contact from June 22, 2020 and barred interscholastic activity before June 30; kept gyms, indoor amusement and theaters closed through the summer, reopening gyms and indoor amusement at twenty-five percent on September 1, 2020 by Executive Order 181 and indoor performance venues and movie theaters at twenty-five percent or 150 on September 4 by Executive Order 183; suspended indoor youth and adult sports from December 5, 2020 through January 2, 2021 by Executive Order 204; admitted ten percent to arenas of 5,000 or more from March 1, 2021 by Executive Order 225; raised venue caps May 19 by Executive Order 239 and lifted them May 28 and June 4, 2021 by Executive Order 242.36 Connecticut closed gyms and theaters at 8:00 p.m. on March 16, 2020 (Executive Order 7D) and malls and amusement facilities at 8:00 p.m. on March 19 (Executive Order 7F); reopened gyms at fifty percent on June 17, 2020 and indoor events on July 20 under Department of Economic and Community Development sector rules with the force of the Governor's orders; tightened the indoor-events rules on November 6, 2020; capped indoor events at twenty-five persons until March 19, 2021 and then at fifty percent or one hundred, and outdoor events at fifty until March 19 and then two hundred; and repealed the sector rules on May 20, 2021.37 Massachusetts closed every non-essential workplace at noon on March 24, 2020 by COVID-19 Order No. 13; reopened gyms, museums and movie theaters at forty percent or twenty-five persons in Phase III Step 1 on July 6, 2020 (July 13 in Boston) and indoor performance venues only in Step 2 for lower-transmission communities from October 5; rolled back to Step 1 on November 9 and December 13, 2020 and to Phase III Step 1 with venues closed and twenty-five percent caps on December 26, 2020; permitted indoor performance venues at fifty percent or five hundred from March 1, 2021 and stadiums at twelve percent from March 22; and rescinded every general order at 12:01 a.m. on May 29, 2021.38 Pennsylvania closed every business not on its life-sustaining list on March 19, 2020, reopened gyms and theaters at fifty percent county by county in the green phase from May 29 to July 3, 2020, capped indoor events at twenty-five and outdoor at two hundred fifty from July 16, 2020, converted the caps to percentages on October 9, imposed the mitigation-and-enforcement order of November 27, 2020, closed indoor gyms and indoor entertainment from December 12, 2020 to January 4, 2021, raised gyms to seventy-five percent and events to twenty-five and fifty percent on April 4, 2021, and ended the mitigation orders on May 31, 2021.39 Rhode Island closed recreation and entertainment establishments at 5:00 p.m. on March 23, 2020 and ordered residents home on March 28; reopened in Phases 2 and 3 on June 1 and June 30, 2020; imposed the Pause of November 30 through December 20, 2020 with indoor recreation closed and venues at twenty-five percent from December 21; and lifted its last capacity order on July 6, 2021 by Executive Order 21-76, the last statewide withdrawal in the country outside Hawaii.40 Vermont closed gyms, theaters and entertainment venues by 8:00 p.m. on March 23, 2020 and limited gatherings to ten; reopened on June 1 and June 26, 2020 under the Amended and Restated Executive Order; re-imposed gathering limits on October 16 and November 14, 2020; and reached its final step on June 14, 2021.41 New Hampshire ordered residents home on March 27, 2020, made its health-and-fitness and indoor-ice-arena reopening guidance mandatory until May 7, 2021, imposed airborne-transmission controls, face coverings at every scheduled gathering of one hundred or more from August 11, 2020 (Emergency Order #63, Ex. NH-023) and in every public space, indoors and outdoors where six feet could not be kept, from November 20, 2020 (Emergency Order #74), both to April 16, 2021.42 Maine barred gatherings over ten from March 18, 2020 (Executive Order 14 FY 19/20) and closed gyms, theaters and every non-essential public-facing business from March 25 (Executive Order 19 FY 19/20), reopened them under mandatory checklists, capped indoor gatherings at fifty from October 13, 2020, reduced them and required a traveler test or quarantine through the winter, and lifted its capacity limits on May 24, 2021 by Executive Order 38 FY 20/21, with its gym checklist mandatory until then.43
The South
Florida closed gyms and fitness centers statewide on March 20, 2020 by Executive Order 20-71 and bars, nightclubs, theaters and amusement facilities in Broward and Palm Beach counties by Executive Order 20-70; reopened gyms at fifty percent on May 18 under Executive Order 20-123, which also permitted professional sports venues to host events, and theaters, bowling alleys and arcades at fifty percent on June 5 under Executive Order 20-139; and on September 25, 2020 removed its caps and barred local governments from closing any business or capping a restaurant below fifty percent by Executive Order 20-244, so that Florida's employers operated under the counties' face-covering and exposure-control regimes until Executive Order 21-102 suspended them on May 3, 2021 and under section 381.00316's prohibition of vaccination-documentation requirements from July 1, 2021.44 Georgia suspended every local order and imposed a statewide shelter-in-place from April 3, 2020, reopened gyms and bowling alleys on April 24 and theaters on April 27, 2020 under business-specific operating requirements renewed every two weeks through April 30, 2021, and kept its public health emergency in force to July 1, 2021, replacing it with an Economic Recovery state of emergency renewed on August 19 and September 20, 2021.45 Texas closed gyms and capped gatherings at ten from 11:59 p.m. on March 20, 2020 by Executive Order GA-08; reopened gyms at twenty-five percent on May 18 by GA-21, permitted professional sports "without spectators" from May 31 by GA-23 and amusement parks from June 19 by GA-26; capped venues at fifty percent by GA-28 on June 26, 2020 and seventy-five percent by GA-30 on September 21; by GA-32 of October 7, 2020 cut every gym, museum and venue in any Trauma Service Area with seven consecutive days above fifteen percent COVID hospitalizations back to fifty percent, a trigger that reached Dallas-Fort Worth on December 3, 2020 and eighteen of twenty-two areas by January 15, 2021; and ended the operating limits on March 10, 2021 by GA-34, then barred local face-covering and vaccination requirements by GA-38 of July 29, 2021, GA-39 of August 25, 2021 and Senate Bill 968.46 Virginia closed gyms, theaters, bowling alleys and recreation and entertainment businesses at 11:59 p.m. on March 24, 2020 by Executive Order 53, permitted outdoor fitness only in Phase One from May 15, gyms at thirty percent in Phase Two from June 5 and seventy-five percent with entertainment venues at fifty percent or 1,000 in Phase Three from July 1, 2020; cut gatherings to twenty-five on November 16, 2020 and venues to thirty percent or 250 on December 14, 2020 by Executive Order 72; and lifted the limits at midnight on May 28, 2021 by Executive Order 79, while its Department of Labor and Industry's infectious-disease standard governed every workplace from July 27, 2020 through the third quarter of 2021.47 Maryland closed gyms, theaters and recreational establishments at 5:00 p.m. on March 16 and 19, 2020 and casinos and racetracks from March 16 by separate order; reopened fitness centers, malls, gaming and indoor recreation on June 19, 2020 and theaters at fifty percent or one hundred in Stage Three from September 4; capped outdoor sports venues at ten percent from October 16 and fitness centers at fifty percent from November 20, 2020, with the Department of Health's gatherings directive of November 17; ended fitness caps on March 12, 2021 and venue caps on May 15, 2021.48 The District of Columbia closed every business outside the essential list by 10:00 p.m. on March 25, 2020, reopened in Phase Two on June 22, suspended group fitness classes from November 25, 2020 and prohibited high-contact sports from December 11 with venues at twenty-five percent or 250, eased on March 22 and May 1, 2021, and reinstated universal indoor airborne-transmission controls (a face covering in every indoor public setting regardless of vaccination status) on July 31, 2021 by Mayor's Order 2021-097.49 Delaware closed gyms, theaters, bowling alleys and recreation facilities at 8:00 a.m. on March 19, 2020, reopened them at thirty percent from June 1 and sixty percent from June 15, 2020, consolidated its rules in the Omnibus Modification of September 4, 2020, imposed workplace infection-prevention and exposure-control requirements, face coverings while exercising among them, and a youth-sports travel ban from November 23 and December 1, 2020, capped classes at ten and paused sports from December 14, 2020 to January 11, 2021, struck its occupancy limits on May 21, 2021 and kept its tournament and indoor-sport plan-approval rule to July 12, 2021.50 North Carolina closed gyms, theaters, bowling alleys and entertainment facilities at 5:00 p.m. on March 25, 2020 by Executive Order 120 and kept them closed through Phase 2; reopened gyms at thirty percent on September 4 (Executive Order 163) and theaters at thirty percent or one hundred and large venues at seven percent on October 2, 2020 (Executive Order 169); cut gatherings to ten on November 13, 2020; raised gyms to fifty percent and movie theaters, entertainment facilities and venues to thirty percent (indoor venues of 5,000 or more seats at fifteen percent) on February 26, 2021 (Executive Order 195, Ex. NC-026) and to seventy-five and fifty percent on March 26 (Executive Order 204); and lifted the caps on May 14, 2021 by Executive Order 215.51 South Carolina closed gyms, theaters, bowling alleys and arcades at 5:00 p.m. on April 1, 2020, reopened gyms and pools on May 18 and bowling alleys and entertainment venues on May 22, treated concert venues, theaters and spectator sports as gatherings capped at fifty percent or 250, with face coverings as an exposure-control condition, from August 3, 2020 under Executive Order 2020-50, and ended the caps on March 1, 2021.52 Tennessee closed gyms and capped gatherings at ten from March 23, 2020 by Executive Order 17, ordered residents home on March 31, reopened under the Tennessee Pledge from May 8 and prohibited contact sports by Executive Order 38 of May 22, 2020, capped gatherings at ten from December 20, 2020 by Executive Order 70, and ended its orders on April 28, 2021 by Executive Order 80, having left the six counties with metropolitan health departments free to impose their own regimes throughout.53 Alabama closed fitness centers, entertainment venues and every non-work gathering of ten from 5:00 p.m. on March 28, 2020, reopened gyms on May 11 under infection-prevention and exposure-control conditions (face coverings, sanitation, six feet between equipment and closed saunas and showers) and entertainment venues and athletic activities on May 22, and ended its Safer at Home order on November 8, 2020, then declared a new emergency on August 13, 2021.54 Mississippi ordered residents home and closed gyms and theaters from 5:00 p.m. on April 3, 2020, reopened gyms on May 11 and entertainment venues in June, re-capped venues on December 11, 2020, and ended most limits on March 3, 2021 and arena limits on April 30, 2021.55 Louisiana closed gyms, casinos, theaters and entertainment venues at midnight on March 17, 2020 by Proclamation 30 JBE 2020, reopened them at twenty-five percent on May 15 and fifty percent on June 5, 2020, raised them to seventy-five percent with arenas at twenty-five percent in Phase Three from September 11, returned to Modified Phase Two with indoor live entertainment prohibited from November 25, 2020, returned to Phase Three on March 3, 2021, ended its face-covering requirement on April 28 and capacity limits on May 26, 2021, and reinstated statewide indoor airborne-transmission controls (a face covering in every indoor location outside a private residence, with businesses required to enforce) on August 4, 2021 by Proclamation 137 JBE 2021, renewed September 1 and September 29.56 Kentucky closed gyms, theaters and entertainment facilities at 5:00 p.m. on March 18, 2020, reopened fitness centers at thirty-three percent on June 1 and venues and events under the requirements of June 29, 2020, cut gyms to thirty-three percent and venues to twenty-five per room from November 20, 2020, and ended its capacity orders on June 11, 2021.57 West Virginia closed casinos on March 18 and gyms, fitness and recreation centers on March 19, 2020, ordered residents home on March 24, reopened in weekly steps from May 11 through June 8, 2020, re-prohibited fairs, festivals and amusement parks on July 14, 2020 and cut gatherings to twenty-five, imposed airborne-transmission controls in every indoor space, face coverings included while exercising, from November 14, 2020, regulated youth sports by order from November 13, 2020 and January 11, 2021, kept fairs, festivals and summer camps barred on March 25, 2021 and terminated the framework on April 20, 2021.58 Arkansas closed gyms, theaters, bowling alleys and arcades and capped gatherings at ten from March 20, 2020 by Department of Health directive, closed casinos from noon on March 17, reopened gyms on May 4, casinos at thirty-three percent on May 18 and large indoor and outdoor venues on May 18 under directives converted to Phase 2 on June 15, 2020, regulated team sports from June 1 and community music and theater from August 5, 2020 by directive, revised its indoor-venue directive on January 2, 2021 and converted the directives to guidance on February 26, 2021.59 Oklahoma closed gyms, theaters and entertainment venues in every county with a confirmed case at 11:59 p.m. on March 25, 2020, reopened gyms, dining and entertainment on May 1 under the Open Up and Recover Safely plan, re-imposed capacity and hours limits on December 14, 2020 and ended them on March 12, 2021.60
The Midwest
Illinois ended on-premises consumption at 9:00 p.m. on March 16, 2020, closed casinos and video gaming by Gaming Board order the same day, ordered residents home and every business outside the essential list closed at 5:00 p.m. on March 21 by Executive Order 2020-10; permitted gyms only for one-on-one training in Phase 3 from May 29 and gyms at fifty percent and theaters at fifty persons or fifty percent in Phase 4 from June 26, 2020; imposed Tier 3 mitigations from November 20, 2020 by Executive Order 2020-73, under which indoor group fitness, indoor recreation, theaters, museums, casinos and indoor spectator events were prohibited, gyms held to twenty-five percent and gatherings to ten, re-issued monthly into 2021; reached Phase 5 on June 11, 2021; and reinstated statewide indoor airborne-transmission controls (a face covering for every person over two in an indoor public place) from August 30, 2021 by Executive Order 2021-20, re-issued September 3 and 17.61 Indiana closed casinos from 6:00 a.m. on March 16, 2020 by Gaming Commission order and every business outside the essential list from 11:59 p.m. on March 24 by Executive Order 20-08; reopened gyms and pools in Stage 3 from May 22-24, theaters and amusement facilities in Stage 4 from June 12 and casinos from June 15, 2020 under approved plans; required a plan approved by the local health department for every event above a stated size from July 23, 2020; returned to county-metric capacity limits on November 15, 2020, with events at twenty-five to fifty percent and safety-plan approval from November 22; and ended its capacity directives on April 6, 2021 by Executive Order 21-09, while Marion County kept its own limits to July 1, 2021.62 Iowa closed fitness centers, theaters and casinos on March 17, 2020 and bowling alleys, arcades, amusement parks, museums, zoos and playgrounds from 8:00 a.m. on April 7; reopened fitness centers at fifty percent in seventy-seven counties on May 1 and statewide May 15, movie theaters, museums, zoos and pools on May 22, and casinos, amusement facilities, rinks and outdoor venues on June 1, 2020; lifted percentage caps on June 12 while retaining distancing mandates; imposed statewide airborne-transmission and gathering controls (a face-covering requirement, gathering limits of fifteen indoors and thirty outdoors and a two-spectators-per-athlete rule) from November 17, 2020; and ended its mandates on February 7, 2021.63 Kansas capped gatherings at ten from March 25 and ordered residents home from March 30, 2020, reopened under the Ad Astra plan from May 4 with gyms opening in Phase 1 without group classes and theaters and bowling in Phase 2 from May 22, converted the plan to guidance on May 26, 2020, and thereafter governed through county health orders, of which Johnson County's Order 002-20 of November 16, 2020 barred venues over 2,000 from events and prohibited fairs, festivals, carnivals and parades.64 Michigan closed gyms, theaters, casinos, bowling alleys and arcades at 3:00 p.m. on March 16, 2020 by Executive Order 2020-9 and every commercial casino from 8:00 p.m. that day by Gaming Control Board order; kept gyms outside Regions 6 and 8 closed until September 9, 2020 and theaters until October 9, 2020 (the last step displaced by the Supreme Court's decision of October 2 and replaced within days by the Department of Health and Human Services' orders under MCL 333.2253); re-closed theaters, casinos, bowling centers, arcades, group fitness and organized sports from November 18, 2020 by the Pause to Save Lives, extended December 9, reopened venues at twenty percent of fixed seating or one hundred from December 21 with group fitness still closed, permitted group fitness from January 16, 2021 (Ex. MI-063) and indoor dining from February 1 (Ex. MI-064), permitted contact sports from February 8 with testing, and rescinded its orders effective June 22, 2021.65 Minnesota closed gyms, theaters, bowling alleys, arcades, museums and every place of public accommodation at 5:00 p.m. on March 17, 2020 by Emergency Executive Order 20-04; reopened outdoor venues from June 1 and gyms, theaters and indoor venues at twenty-five percent or two hundred fifty in Phase III from June 10, 2020; closed gyms, entertainment venues and event venues and paused organized sports from November 20 through December 18, 2020 by Emergency Executive Order 20-99; reopened gyms and outdoor events at twenty-five percent or one hundred on January 4 and indoor venues at twenty-five percent or one hundred fifty on January 11, 2021 (Executive Order 21-01, Ex. MN-035, effective 11:59 p.m. January 10), fifty percent or two hundred fifty from February 13, and large venues of 10,000 or more at twenty-five percent from April 1, 2021; ended its capacity and gathering limits at 11:59 p.m. on May 27, 2021 and its remaining steps on June 30, 2021.66 Missouri closed casinos statewide from midnight on March 17 through May 31, 2020 by Gaming Commission order, capped gatherings at ten by Department of Health order of March 21 and ordered residents home from April 6 to May 3, 2020; its counties and cities then governed the industry, with St. Louis City and County closing gyms, pools, banquet rooms and contact-sports facilities in their Phase I of May 18, 2020, holding large venues to fifty percent from August 13, 2020 to May 2, 2021 and limiting youth sports to practice from July 20, 2020, and with Jackson County and Kansas City holding gyms and venues to fifty percent, with face coverings as an exposure-control condition, from November 20, 2020 to April 2021.67 Nebraska capped gatherings at ten from March 19, 2020 and closed bars, clubs and theaters and suspended team sports statewide through May 31, 2020 by Directed Health Measures; reopened in district phases from May 4 with gyms at fifty percent from June 1 and seventy-five percent from June 22, 2020; re-imposed statewide gathering limits of twenty-five percent and spectator limits from November 11, 2020; and ended its measures on May 24, 2021.68 North Dakota closed fitness centers, theaters and recreational facilities at noon on March 20, 2020 by Executive Order 2020-06, reopened them on May 1 under Smart Restart standards mandatory until May 22, 2020, imposed airborne-transmission controls in every indoor space and suspended all youth and adult sports from November 16 to December 14, 2020 by Executive Orders 2020-43 and 2020-43.1, and ended its capacity orders on January 18, 2021.69 Ohio closed gyms, theaters, bowling alleys, recreation centers, water parks and trampoline parks and prohibited mass gatherings by the Director's Amended Order of March 17, 2020 and ordered residents home from March 23; reopened gyms and fitness venues on May 26 and casinos on June 19, 2020; regulated youth, collegiate, amateur, club and professional sports by mandatory order from August 19, 2020 and entertainment venues from August 25, 2020 at fifteen percent of fixed seating or three hundred indoors and 1,500 outdoors; limited county fairs to junior fair activities from July 31, 2020; raised venue caps on March 2, 2021 and reopened fairs on March 11; rescinded the sector orders on April 5, 2021 and the last general order on June 2, 2021.70 South Dakota issued no closure order but capped gatherings at ten and required "reasonable and appropriate measures" of every enclosed retail business by Executive Orders 2020-08 and 2020-12 of March 23 and April 6, 2020; its cities closed gyms, theaters and venues by ordinance through April 2020, and Brookings kept a local regime to April 27, 2021.71 Wisconsin closed gyms, theaters and every business outside the essential list at 8:00 a.m. on March 25, 2020 by Emergency Order #12, extended to May 26 by Emergency Order #28; the Supreme Court ended the statewide order on May 13, 2020 and Milwaukee, Madison and Dane County re-imposed their regimes locally within a day; Emergency Order #3 of October 6, 2020 capped indoor public gatherings at twenty-five percent from October 8 to November 6, 2020, and Executive Order #94 of November 10 followed; Milwaukee's Order #4.2 of October 29, 2020 held every gym, venue and gathering to the lesser of twenty-five percent, one person per thirty square feet or ten indoors until March 18, 2021, and Dane County prohibited every indoor gathering from November 18 to December 15, 2020 and capped them at ten through March 9, 2021; Dane County's face-covering orders, airborne-transmission controls on every indoor public space, returned on August 19 and September 10, 2021.72
The West
Alaska closed gyms, theaters and bowling alleys at 5:00 p.m. on March 18, 2020 by Health Mandate 003 and ordered residents home by Mandate 011 on March 28; reopened in Phase II on May 8, 2020 under attachments with capacity limits and converted its mandates to advisories on May 22, 2020; Anchorage then governed its own industry, at fifty percent from July 24, 2020, with bingo halls and theaters closed August 3-30, 2020, indoor entertainment closed and gyms at twenty-five percent from December 1, 2020, entertainment at twenty-five percent and gyms at fifty percent from January 1, 2021, and rescission on May 3, 2021; Juneau raised its incident level to High on July 30, 2021 with gyms at half capacity and indoor gatherings of fifty, and the State declared a public health emergency on May 1, 2021 and activated crisis standards of care on September 21, 2021.73 Arizona closed gyms, fitness clubs, movie theaters and bars in every county with a confirmed case from close of business on March 20, 2020 by Executive Order 2020-09, permitted gyms and pools to reopen from May 13, 2020 under the Governor's May 12 announcement and, from May 16, under the mandatory business policies of Executive Order 2020-36 (Ex. AZ-019), which also barred local orders "in addition to" the State's, re-closed gyms, theaters, water parks and tubing and barred events over fifty from 8:00 p.m. on June 29, 2020 by Executive Order 2020-43, extended the pause by Executive Order 2020-52 on July 23, permitted reopening only on individual attestation to the Department of Health Services under Emergency Measure 2020-02 of August 10, 2020 and Emergency Measure 2020-04 of November 19, lifted capacity limits on March 5, 2021 by Executive Order 2021-05 and ended local business orders on March 25, 2021 by Executive Order 2021-06.74 California ordered every resident home on March 19, 2020 by Executive Order N-33-20 and the State Public Health Officer's order, after Los Angeles County and the City had closed gyms, theaters, bowling alleys and arcades on March 15-16; permitted gyms to reopen in variance counties from June 12, 2020; closed indoor operations of movie theaters, family entertainment centers, zoos, museums and cardrooms statewide and gyms in monitoring-list counties on July 13, 2020; fixed the Blueprint for a Safer Economy tiers on August 28, 2020 (gyms outdoor only in Purple, ten percent in Red, twenty-five percent in Orange, fifty percent in Yellow; theaters outdoor only in Purple, twenty-five percent or one hundred in Red; amusement parks closed in every tier until April 1, 2021, then fifteen to thirty-five percent; live-audience sports from April 1, 2021); imposed the Regional Stay at Home Order from December 5-6, 2020 to January 25, 2021 (all indoor and outdoor recreation, entertainment and live-audience sports closed); permitted inter-team youth competition from January 25, 2021; ended the Blueprint on June 15, 2021 by the Beyond the Blueprint order, which required vaccination or a negative test at indoor mega-events of 5,000 and recommended it outdoors at 10,000, lowered the indoor threshold to 1,000 from September 20, 2021, and continued Cal/OSHA's emergency temporary standard in every workplace.75 Colorado closed gyms, theaters and casinos from 8:00 a.m. on March 17, 2020 by Public Health Order 20-22, held gyms to twenty-five percent or fifty and indoor events to one hundred in the summer of 2020, adopted the dial in November 2020 under which Level Red (Denver metro from November 20) held gyms to ten percent or ten and closed indoor events, moved to Dial 2.0 and 3.0 in February and March 2021, transferred the dial to the counties on April 16, 2021 by Public Health Order 20-38, and renewed the order monthly through the third quarter of 2021, adding a health-care vaccination rule on August 30, 2021.76 Hawaii ordered residents home from March 25, 2020 by the Third Supplementary Proclamation, imposed a fourteen-day traveler quarantine from March 26, 2020 and a pre-travel testing program from October 15, 2020, governed reopening through county tiers approved by the Governor, placed every person in the State under airborne-transmission controls from November 16, 2020 by the Fifteenth Proclamation's Statewide Face Covering Requirement (Exhibit J), carried in every successor proclamation through the third quarter of 2021 (Ex. HI-019 and its successors), re-capped gatherings at ten indoors and twenty-five outdoors and gyms and the activities listed with them at fifty percent from August 10, 2021 by Executive Order 21-05, required vaccination or a test of every State employee from August 16 and of every visitor to State property from September 13, 2021, and ended its statewide limits only on December 1, 2021; Honolulu closed bars and gatherings on March 20, 2020 and private sport facilities on April 1, ran a tiered regime with indoor events prohibited in Tiers 1 through 3 into 2021, imposed Safe Access O'ahu from September 13, 2021 and closed indoor and outdoor events from September 22 through October 19, 2021; Maui's Safer Outside rules took effect September 15 and Kauai's Rule 26 in September 2021.77 Idaho ordered residents home on March 25, 2020, kept gyms closed in Stage 1 from May 1 and reopened them in Stage 2 from May 16 and theaters in Stage 3 from May 30; returned Ada County to Stage 3 on June 24, 2020 and imposed county orders in October; re-tightened statewide to Modified Stage 3 on October 27 and Modified Stage 2 on November 14, 2020 with gatherings of ten, reissued December 30; and returned to Stage 3 guidelines on February 2, 2021.78 Montana closed theaters, gyms and casinos from 8:00 p.m. on March 20, 2020 and ordered residents home on March 28; reopened casinos on May 4 and gyms, pools, theaters and museums on May 15, 2020 in Phase One and moved to Phase Two on June 1; capped groups at twenty-five, venues at fifty percent and closing at 10:00 p.m. from November 20, 2020, with Gallatin County's stricter order the same day; and ended the directive on January 15, 2021 under Executive Order 2-2021, after which the legislature barred vaccination-status requirements in May 2021.79 Nevada closed gyms, theaters, casinos, bowling alleys and arcades at 11:59 p.m. on March 20, 2020 by Directive 003, reopened them in Phase Two from May 29 at fifty percent with saunas, showers and child care closed and no live entertainment under Directive 021, capped gatherings at two hundred fifty or fifty percent from October 1, 2020 under Directive 033, imposed the Statewide Pause from November 24, 2020 under Directive 035 (twenty-five percent; gatherings of fifty; tournaments prohibited; casinos at twenty-five percent by Gaming Control Board notice), stepped to thirty-five and fifty percent on February 15 and March 15, 2021 under Directive 037, delegated mitigation to counties with approved plans from May 1, 2021 under Directive 044 and ended State caps June 1; then imposed airborne-transmission controls (a face covering for every person, vaccinated or not) in every indoor public space in substantial- and high-transmission counties from July 30, 2021 by Directive 047, set county levels by Directive 048, and conditioned any face-covering exemption for large events of 4,000 or more on proof of vaccination of every attendee and staff member by Directives 049 and 050 of August 16 and September 2, 2021.80 New Mexico capped gatherings at ten and closed gyms, theaters and amusement facilities from 8:00 a.m. on March 19, 2020, reopened gyms and indoor venues at reduced capacity on June 1, closed indoor dining and imposed exposure-control requirements, face coverings while exercising among them, on July 13, cut gatherings to five on October 16, closed the industry in the two-week reset of November 16-30, 2020 and governed it by the Red-Yellow-Green county framework from December 2, 2020 to June 30, 2021, ending capacity limits on July 1, 2021 while keeping face-covering requirements for the unvaccinated; it reinstated universal indoor airborne-transmission controls from August 20, 2021, required vaccination or testing of State workers from August 2 and of school workers from August 23, and required proof of vaccination of every entrant to the State Fair of September 9-19, 2021.81 Oregon closed gyms, theaters, bowling alleys, arcades and amusement facilities from 12:01 a.m. on March 24, 2020 by Executive Order 20-12, reopened them county by county from May 15 under sector guidance with the force of the order, froze the State from November 18, 2020 by Executive Order 20-65 (gyms, venues and museums closed; indoor gatherings of six), governed it by county level under Executive Order 20-66 from December 3, 2020 with Extreme-level counties' gyms and venues closed or capped, and lifted its capacity limits at 12:01 a.m. on June 30, 2021 by Executive Order 21-15; it then imposed airborne-transmission controls (face coverings, with every business responsible for compliance) indoors from August 13 and in crowded outdoor spaces from August 27, 2021 by rule, vaccination of health-care and school workers by rules of August 5 and 25, 2021, and airborne-transmission controls (face coverings) in every school by rule of August 2, 2021.82 Utah issued a stay-home directive on March 27, 2020 and left closures to its counties, which closed every place of public amusement and every gym from March 29 through April 2020 (Salt Lake County, Salt Lake City, Summit, Wasatch, Weber-Morgan and Southeast Utah), reopened under mandatory protocols from May 1, 2020, and placed gyms and indoor sports under county face-covering orders, airborne-transmission controls on every indoor facility, from August 26, 2020; the State suspended extracurricular activities and limited casual gatherings to households from November 9, 2020 by Executive Order 2020-73 and State Public Health Order 2020-25, and ended its orders in May 2021.83 Washington closed fitness centers, theaters, bowling alleys and every recreational and social establishment and capped gatherings at fifty from March 16, 2020 by Proclamation 20-13, after King County's health officer had done the same that morning; reopened county by county under the Safe Start plan from June 1, 2020 with fitness and indoor-entertainment requirements carrying the force of the proclamations; closed indoor fitness, theaters, museums and bowling from November 17, 2020 to January 11, 2021 by Proclamation 20-25.8 and its extensions; reopened in Healthy Washington Phases 1 through 3 from January 11, 2021 with indoor entertainment requirements to June 30, 2021; and under Washington Ready from June 30, 2021 held indoor events over 10,000 to seventy-five percent unless vaccination was verified, then imposed universal indoor airborne-transmission controls from August 23 and extended them to outdoor events of five hundred or more from September 13, 2021 by Secretary of Health Orders 20-03.4 and 20-03.5 and Proclamations 20-25.15 and 20-25.17, and vaccination of health-care and State workers by Proclamations 21-14 and 21-14.1.84 Wyoming closed gyms, theaters, bowling alleys, arcades and every indoor amusement and capped gatherings at ten from March 19, 2020 by Statewide Public Health Order #1, reopened gyms on May 1 under exposure-control conditions (face coverings and closed locker rooms), theaters and bowling on May 15, capped gyms and gatherings again from December 9, 2020, lifted the gym restrictions on March 16, 2021 while continuing the gathering order to May 31, 2021, and from July 1, 2021 operated under the legislature's limits on public health orders.85
The winter re-tightening of 2020-21
Between November 13 and December 26, 2020 thirty-one States and the District re-closed, re-capped or re-tightened the industry, twenty-two of them and the District by re-closure or capacity order and nine more (New Jersey, North Carolina, Nebraska, North Dakota, Idaho, Utah, Tennessee, West Virginia and Iowa) by orders suspending its sports or cutting the gathering, spectator and airborne-transmission rules under which it operated, with Anchorage doing the same by municipal order: Michigan (theaters, casinos, bowling, group fitness and organized sports closed November 18 to December 20), Minnesota (all closed November 20 to December 18), Illinois (Tier 3 from November 20), Washington (indoor operations closed November 17 to January 11), Oregon (freeze from November 18; Extreme-level closures from December 3), California (Regional Stay at Home Order December 5-6 to January 25), Pennsylvania (indoor gyms and entertainment closed December 12 to January 4), Rhode Island (Pause November 30 to December 20), Massachusetts (Step 1 rollback December 26; venues closed), New Mexico (reset November 16-30; Red-county closures from December 2), Colorado (Level Red from November 20: gyms ten percent, indoor events closed), Nevada (Pause from November 24: twenty-five percent, tournaments prohibited), Kentucky (gyms thirty-three percent, venues twenty-five per room from November 20), Delaware (classes of ten, sports paused from December 14), the District (group classes suspended from November 25; high-contact sports prohibited from December 11), Virginia (venues thirty percent or 250 from December 14), Maryland (fitness fifty percent from November 20), North Carolina (gatherings of ten from November 13), Nebraska (twenty-five percent gatherings from November 11), North Dakota (all sports suspended November 16 to December 14), Idaho (Modified Stage 2 from November 14), Utah (extracurriculars suspended from November 9), Tennessee (gatherings of ten from December 20), Texas (fifty percent in high-hospitalization areas from December 3 in Dallas-Fort Worth), Louisiana (Modified Phase Two from November 25), Mississippi (venue caps from December 11), New Jersey (indoor sports suspended December 5 to January 2), New York (orange-zone gym closures December 14; 10:00 p.m. closing), Montana (twenty-five persons, fifty percent, 10:00 p.m. from November 20), West Virginia (face coverings while exercising from November 14; youth sports order), Iowa (gathering and spectator limits from November 17), Wyoming (from December 9) and Anchorage (indoor entertainment closed from December 1).86
The 2021 transition
The end of general restrictions on this industry, State by State, ran from September 25, 2020 (Florida) to December 1, 2021 (Hawaii): Alabama November 8, 2020; Montana January 15, 2021; North Dakota January 18; Idaho February 2; Iowa February 7; Arkansas February 26; South Carolina March 1; Mississippi March 3 (arenas April 30); Texas March 10; Maryland March 12 (venues May 15); Oklahoma March 12; Wyoming March 16 (gatherings May 31); Arizona March 25; Indiana April 6; Georgia April 8 (public health emergency to 12:00 a.m. July 1, 2021); Colorado April 16 (to the counties); West Virginia April 20; Tennessee April 28; Utah May 4-14; New Hampshire May 7; North Carolina May 14; New York May 19 (June 15); Connecticut May 20; Delaware May 21 (tournaments July 12); the District May 21 (June 11); Maine May 24; Nebraska May 24; Louisiana May 26; Minnesota May 27; New Jersey May 28 (June 4); Virginia May 28; Massachusetts May 29; Pennsylvania May 31; Nevada June 1; Ohio June 2; Illinois June 11; Kentucky June 11; Vermont June 14; California June 15 (mega-event rule continuing); Michigan June 22; Washington June 30 (over-10,000 rule continuing); Oregon June 30; New Mexico July 1; Rhode Island July 6; Hawaii December 1, 2021.87 The median State withdrew in late May 2021. In every one of these jurisdictions the State emergency, the school and quarantine orders, the sector regulators' instruments and the federal layer remained in force after the caps ended, and in nine of them new orders followed in the third quarter of 2021.
The preemption States
Eleven States barred or suspended conflicting local orders on this industry at some point in the period, and in each the State's own instruments carried the quarters: Florida (Executive Order 20-244's bar on local closures and caps below fifty percent from September 25, 2020; Executive Order 21-102's suspension of every local order on May 3, 2021; section 381.00316 from July 1, 2021), Texas (GA-14 onward; GA-38 of July 29, 2021), Georgia (Executive Order 04.02.20.01's suspension of every local order since March 1, 2020), Arizona (Executive Orders 2020-12, 2020-18 and 2020-36; Executive Order 2021-06 of March 25, 2021 with its carve-out for face coverings in government buildings and on transit), Arkansas (Executive Order 20-37 ¶ 5 and every renewal, Ex. AR-011 and Ex. AR-012 among them: "Cities and counties shall not impose any restriction of commerce or travel that is more restrictive than a directive or guideline issued by the Secretary of Health"; Executive Order 20-43 of July 16, 2020), Connecticut (Executive Order 7H § 2, repeated in every Sector Rule order; Executive Order 13A § 1(d), Ex. CT-050), Mississippi (Executive Order 1463), South Carolina, Tennessee (Executive Order 29 for the eighty-nine counties without a metropolitan health department, April 27, 2020 to April 28, 2021), New Jersey (Executive Orders 104 and 108) and New York (Executive Orders 202.3 and 202.5); Massachusetts (COVID-19 Order No. 33 § 6) and Alabama (the Orders of the State Health Officer, including the order of April 3, 2020, ¶ 17) preempted in part, and Montana, Utah and Wyoming limited local authority by 2021 statute (Ex. MT-072; Ex. MT-073; Ex. UT-041; Ex. UT-045; Ex. WY-055).88 In the remaining jurisdictions stricter local orders were expressly preserved or invited, and in Missouri, South Dakota and, after May 2020, Kansas and Wisconsin, the local layer was the only layer. The preemption instruments are themselves orders limiting commerce: an instrument that bars a county from capping a restaurant below fifty percent is an instrument that fixes the county's cap at fifty percent, and an instrument that suspends every local order "since March 1, 2020" proves that such orders existed to be suspended.
The largest metros
The metropolitan health officers, mayors and county judges of the thirty-seven metro areas in the Library closed this industry's facilities before their States did, held them closed after their States reopened, rolled reopening back in the winter of 2020, and in August and September 2021 issued the vaccination-proof, face-covering, event and school orders that make the third quarter of 2021 a quarter of new orders. Every face-covering requirement named in this paragraph is one of the airborne-transmission controls the issuing authority imposed on the indoor public spaces, workplaces, schools, public buildings or court facilities it governs; the third-quarter-2021 section states the companion controls and the duties to post, screen and exclude that the principal orders carried. New York City closed venues and commercial gyms at 8:00 p.m. on March 16, 2020 (Emergency Executive Order 100), museums, all gyms and classes and all amusements on March 20 (Emergency Executive Order 102), and every non-essential gathering of any size on March 25 (Emergency Executive Order 103); held gyms closed until September 2, 2020 and reopened them only on attestation and inspection with indoor classes prohibited (Emergency Executive Order 144); refused every street-event, parade and fair permit from July 7, 2020 into 2021 (Emergency Executive Order 130); imposed Key to NYC from August 17, 2021 (Emergency Executive Order 225, restated by Emergency Executive Orders 228, 239 and 250) and the extracurricular-sport vaccination order of September 15, 2021.89 Los Angeles closed gyms, theaters, bowling alleys and arcades on March 15-16, 2020 (the Mayor's order and the County Health Officer's order), closed indoor gyms again from July 13-14, 2020 to March 14, 2021 and theaters from March 16, 2020 to March 14, 2021, kept family entertainment closed to March 2021, held gyms at ten percent and theaters at twenty-five percent in the Red tier from March 15, 2021, lifted caps June 15, 2021, reinstated universal indoor airborne-transmission controls July 17, 2021, extended them to outdoor mega-events of 10,000 from August 19-20 (the County's High Transmission order and Pasadena's parallel order), saw Pasadena require vaccination or a test at indoor mega-events of 1,000 from September 15, and ordered vaccination proof for outdoor mega-events and bars from October 7, 2021 by an order issued September 17.90 Chicago and Cook County closed the industry March 21, 2020, capped gyms at twenty-five percent with classes ceased and closed venues to gatherings from November 20, 2020 (Order 2020-9 Sixth Amended, the capacity guidelines and the Stay-at-Home Advisory), reopened indoor recreation at forty percent or fifty from February 2, 2021 (Cook County Order 2021-1 for suburban Cook County, Ex. MET-CHI-035, with the Village of Oak Park's parallel Phase 4 order of February 4, Ex. MET-CHI-046) and at fifty percent or fifty with classes of twenty from March 2, 2021 (Cook County Order 2021-5, Ex. MET-CHI-037, and Chicago's own Phase 4 step of that date, Ex. MET-CHI-017), lifted limits June 11, 2021, and reinstated indoor face-covering requirements by Chicago Public Health Order 2021-1 (August 20), Cook County Order 2021-10 (August 23) and Oak Park's order (August 6), while the Chicago Park District's facilities stayed closed from March 15, 2020 through the spring and McCormick Place stayed closed from March 2020 until July 2021.91 Dallas-Fort Worth's counties closed gyms, theaters, arcades, bingo halls and amusement on March 16-18, 2020, reopened theaters at twenty-five percent from May 4, and were cut back to fifty percent on December 3, 2020 by the GA-32 trigger; Dallas County imposed face-covering requirements in public settings from August 11, 2021.92 Houston's counties closed bars, gyms and dine-in on March 17-18, 2020 and kept interactive amusement venues, arcades, concert halls and performing-arts venues closed through June 10, 2020, prohibited outdoor gatherings over ten from July 3 to August 26, 2020, and in the third quarter of 2021 imposed face-covering requirements in every courthouse and every school and child-care facility in Harris County.93 The Washington suburbs closed theaters to at least September 29, 2020 (Montgomery County), prohibited higher-contact sports competitions from August 5, 2020 to February 2021, held fitness centers at twenty-five percent and spectators at ten percent from November 15, 2020 (Prince George's), and reinstated indoor airborne-transmission controls from August 7 and 8, 2021 by Montgomery's Board of Health regulation and Prince George's Executive Order 18-2021.94 Philadelphia closed the industry March 23, 2020, reopened gyms July 20 and theaters September 8, 2020 at twenty-five percent, closed gyms, museums, libraries and theaters again from November 20, 2020 to January 15-16, 2021, imposed density and no-eating rules on gyms and theaters from March 1, 2021, ended general restrictions June 10, 2021, and reinstated indoor airborne-transmission controls and conditioned outdoor events of 1,000 on universal face coverings or vaccination from August 12, 2021.95 Atlanta, Savannah, DeKalb and Cobb closed gyms, theaters, bowling and arcades March 20-25, 2020 until the State displaced them on April 3; Atlanta barred every gathering on City property from July 10, 2020 (Executive Order 2020-114, Ex. MET-ATL-061); Savannah imposed face-covering requirements on guided tours and in City buildings from July 26, 2021 and, from August 24 to September 23, 2021, in every indoor space, and barred every gathering above fifty on City property.96 Phoenix, Tucson, Tempe and Mesa closed gyms and theaters March 17-20, 2020 before the State did; Pima County regulated gyms and pools by county measure from May 13, 2020 (adopted within Tucson by Ex. MET-PHX-021) and by the Temporary Measures first adopted July 15, 2020, continued and restated by the Board of Supervisors' Proclamation of December 4, 2020 (Ex. MET-PHX-043), in force to March 25, 2021; Maricopa County's courts imposed face-covering requirements in every court facility from August 9, 2021; and Tucson's employee vaccination ordinance of August 13, 2021 drew the Attorney General's report of September 7.97 Boston delayed Phase III to July 13, 2020; Cambridge refused Step 2 from October 2, 2020, closed Phase III enterprises and held gyms at twenty-five percent from December 26, 2020 to May 6, 2021; Boston closed gyms, movie theaters, museums, aquariums, bowling, arcades, tours and indoor event spaces from December 16, 2020 to March 22, 2021, then held venues at fifty percent or five hundred and stadiums at twelve percent with amusement parks and saunas closed; Boston reinstated indoor airborne-transmission controls from August 27, 2021 and Somerville, Cambridge, Brookline and Worcester did the same in August and September.98 San Francisco and the Bay Area counties closed the industry March 17, 2020, carried every State closure and tier into local law through June 15, 2021, required every business to ascertain the vaccination status of its personnel from May 19 to June 21, 2021 (Santa Clara), imposed universal indoor face-covering and exposure-control requirements in eight jurisdictions from August 3, 2021, each with the business responsible for implementing them, and admitted only vaccinated patrons to San Francisco's gyms and indoor entertainment venues from August 20, 2021.99 Detroit's counties held entertainment venues and fitness centers to fifty percent from March 16, 2020, closed playgrounds and pools, and from October 9, 2020 governed casinos at fifteen percent and every gathering by Detroit's own epidemic order; Oakland and Wayne counties imposed face-covering requirements in every school and day care from August 24 and 27, 2021.100 King County's health officer closed fitness and health clubs, movie theaters, night clubs and every social and recreational establishment and prohibited events of fifty on March 16, 2020; Seattle suspended every permitted event and closed its community centers, pools, fields and courts; the region closed again November 16, 2020 to February 1, 2021; King County imposed face-covering requirements at outdoor events of five hundred from September 7, 2021 and on September 16, 2021 ordered vaccination verification for every gym, theater, museum, arena, exhibition hall, convention center and outdoor event of five hundred from October 25, 2021.101 Minneapolis and Saint Paul converted the Governor's closure into city regulation on March 16-17, 2020, closed every bar area in every indoor space of entertainment from August 1, 2020, placed the licenses of closed health clubs, bowling centers and theaters in inactive status on December 4, 2020, and kept their local emergencies and regulations in force through the third quarter of 2021 with face-covering requirements at City and county property from August 3, 2021.102 San Diego County closed gyms March 18, 2020, closed dance floors and live performances from June 19, 2020 to June 15, 2021, closed indoor gyms July 15, 2020 and indoor recreation December 6, 2020 to January 25, 2021, and kept its isolation and quarantine orders in force through the third quarter of 2021.103 Denver closed Red Rocks Amphitheatre, the Coliseum, the Performing Arts Complex and the Convention Center on March 13, 2020, held gyms to ten percent under Level Red, prohibited spectators at non-professional sports from December 1, 2020 to February 4, 2021, required its approval of indoor events over five hundred and then two thousand in May and June 2021, ordered vaccination of the personnel of schools, child care and listed entities by September 30, 2021 and imposed face-covering requirements in its schools and child care from August 17, 2021; Boulder County imposed airborne-transmission controls in every indoor public space from September 3, 2021 (Public Health Order 2021-08, Ex. MET-DEN-033) after imposing them in its schools, child care and indoor youth settings from August 10 (Ex. MET-DEN-032), and Boulder, Jefferson and the Tri-County counties ran dial orders to mid-August 2021 and school face-covering orders from August 17.104 St. Louis City and County closed gyms, banquet rooms, pools and contact-sports facilities in Phase I, held large venues to fifty percent from August 13, 2020 to May 2, 2021, limited youth sports to practice from July 20, 2020, and reinstated indoor face-covering requirements July 26, 2021 (the County's enforcement enjoined August 20, 2021; the City's order in force through the quarter).105 Las Vegas and Reno closed gyms and casino bars March 16-20, 2020 ahead of the State, and Washoe County barred gatherings above 250 from October 8 and above fifty from November 5, 2020; the Eighth Judicial District Court imposed face-covering requirements in every court facility from July 19, 2021 and Clark County imposed them on its employees and its casino, mall and grocery workers from July 19-22, 2021.106 New Orleans closed gyms, live-performance venues and reception facilities on March 17, 2020, prohibited indoor live entertainment through most of 2020 and again from November 25, 2020 to March 2021, closed every bar for Carnival week 2021, kept gathering caps of 250 and 500 and event conditions in force on July 1, 2021, reinstated universal indoor airborne-transmission controls on July 31, 2021, with every business required to exclude symptomatic workers and post its policies, and required vaccination or a test at every gym, fitness class, indoor sports venue, concert hall, event space, bowling alley, casino and indoor amusement from August 16, 2021; Jefferson Parish imposed face-covering requirements in every indoor space from July 1, 2020 to April 28, 2021 and again from August 4, 2021.107 Honolulu's regime is stated above; Riverside and San Bernardino cancelled Coachella, Stagecoach and the Temecula Valley Balloon and Wine Festival for 2020 and 2021 by health-officer order; Tampa Bay's counties named fitness centers, health clubs, private clubs and theaters in their March 19, 2020 gathering prohibition and closed pools and playgrounds into May 2020; Baltimore City closed indoor recreation and theaters and capped gyms at twenty-five percent from December 11, 2020 and reinstated indoor face-covering requirements by the Health Commissioner's order of August 10, 2021, while Anne Arundel County suspended organized sports from November 13, 2020 and Howard County closed two cinemas by name on March 15, 2020; Orlando closed the Amway Center, Camping World Stadium and the Dr. Phillips Center on March 20, 2020 and Orange County named the theme parks in its stay-at-home order of March 24; Charlotte and Raleigh closed gyms and theaters March 16-23, 2020 and Raleigh's face-covering proclamation of August 13, 2021 named gyms and fitness centers; San Antonio closed gyms, indoor amusement, bowling alleys, bingo parlors and theaters March 18, 2020 and held venues to fifty percent from December 28, 2020 to March 10, 2021; Sacramento County closed indoor entertainment July 2 and 14, 2020, held gyms to ten percent and theaters to twenty-five percent from October 13, 2020, and imposed face-covering requirements in every indoor setting including mega-events from July 30, 2021; Allegheny County closed casinos July 3-10, 2020 and capped events at twenty-five indoors from July 10 to September 24, 2020; Cincinnati imposed face-covering requirements in every place of business from July 9, 2020 and Hamilton County's courts imposed vaccination-status entry rules from August 11, 2021; Columbus imposed face-covering requirements in every indoor venue from September 10, 2021; Indianapolis closed venues, gyms and theaters March 16, 2020, capped events at 250 or twenty-five percent with seven-day pre-approval from July 24, 2020 and at twenty-five percent from November 16, 2020, and lifted its limits only July 1, 2021; Cleveland capped entertainment venues at fifty percent from July 3, 2020 and Cuyahoga County extended the mass-gathering ban to athletic events of one hundred; Nashville closed venues through May 24, 2020, capped them at twenty-five to thirty-three percent of ticketed capacity with health-department approval from March 26, 2021, and Shelby County issued a second stay-home order from December 26, 2020 to January 22, 2021 and reinstated indoor face-covering requirements in August 2021; Milwaukee and Dane County are stated above; Louisville and Lexington closed park amenities, aquatic centers and community centers from March 14, 2020 and Louisville imposed face-covering requirements in its buildings from August 2, 2021 and cancelled its 2021 Forest Fest and Fairdale concerts; Salt Lake County closed every place of public amusement and every gym from March 29, 2020 and Summit County closed every ski resort, theater, club, gym and entertainment venue in the Park City economy on March 15, 2020.108 The metro table on this page tabulates the metros.
The sector regulators
Gaming and racing
Every casino, racino and card room in the country was closed by its gaming regulator in March 2020: the Illinois Gaming Board (March 16), the Indiana Gaming Commission (March 16), the Missouri Gaming Commission (March 17), the Maryland order of March 15, the Arkansas Department of Health directive of March 16, the Nevada Directive 003 (March 20), the Louisiana Gaming Control Board (March 16), the Michigan Gaming Control Board (March 16), the Pennsylvania Gaming Control Board (March 17; the Board's action is evidenced by its release of March 16, 2020, cited as context), the Massachusetts Gaming Commission (March 15), the Ohio Casino Control Commission and the New Jersey Division of Gaming Enforcement (March 16). Reopening was by regulator-approved plan at twenty-five to fifty percent (Arkansas May 18 at thirty-three percent; Louisiana May 18; Pennsylvania June 9 to July; Massachusetts July 6; New Jersey July 2; Michigan Detroit August 5 at fifteen percent; Indiana June 15; Ohio June 19), the winter Pause cut Nevada's floors to twenty-five percent from November 24, 2020, and the Louisiana Gaming Control Board's Emergency Orders 24 (April 29, 2021), 27 (August 4, 2021: occupational-health and airborne-transmission controls, a face covering for every employee and patron), 28 (August 12) and 29 (September 22, 2021) governed every licensed floor in Louisiana through the third quarter of 2021, as the Nevada Gaming Control Board's Industry Notice 2021-71 (issued July 27, 2021, effective 12:01 a.m. July 30) did in Nevada.109 These are orders of appropriate governmental authorities limiting commerce in the amusement, entertainment and food-and-beverage functions of every casino-resort employer, and they reached the arcades, showrooms, bowling centers and card rooms that this industry operates within them.
Parks, fairs and wildlife
State park systems closed campgrounds and vehicular access (Texas April 7 to 20, 2020; California March 17 and 29, 2020 and again by region from December 4, 2020 to January 25, 2021; Hawaii March 20, 2020), closures made under the States' emergency orders and evidenced by the park agencies' announcements, which are cited as context; Washington closed all recreational fishing and shellfish harvest from March 25 to May 5, 2020; and the State fair boards of Oregon (May 7), Ohio (May 21), Minnesota (June 2), Iowa (June 21), Kansas (August 6) and North Carolina (July 29) cancelled their 2020 fairs under the State gathering orders of this section, the boards' cancellation announcements being cited as context for the season those orders removed from carnival operators, food-and-beverage operators, performers and livestock exhibitors; Oregon's and Washington's agricultural workplace rules of 2021 governed the fairgrounds' own employers.110
State health departments' sector rules and interscholastic bodies
The State health and economic-development departments issued sector-specific requirements with the force of the governors' orders: New York's interim guidance for gyms, indoor arts and movie theaters; Connecticut's sector rules for sports and fitness centers and indoor and outdoor events; Ohio's mandatory requirements for sports and entertainment venues and its fair orders; Washington's fitness, indoor-entertainment and spectator-event requirements; Kentucky's Healthy at Work requirements for fitness centers and venues; Maine's gym checklist; North Dakota's Smart Restart standards for fitness centers and movie theaters; New Hampshire's health-and-fitness and ice-arena guidance; Arkansas's directives for gyms, venues, casinos, team sports and music and theater; the District's gym guidance; Maryland's gatherings directive; Nebraska's sports guidelines; Tennessee's Pledge for attractions and large venues; California's Blueprint chart and youth-sports guidance; Arizona's attestation measures; Oregon's sector guidance; Illinois's Phase 3 and 4 orders; Utah's public health orders; Louisiana's proclamations with their sector annexes.111 The interscholastic and athletic bodies acted under the same orders: North Dakota's winter-sports suspension, West Virginia's youth-sports orders, New Jersey's bar on NJSIAA activity before June 30, 2020, Tennessee's contact-sports prohibition, Denver's spectator prohibition and New York City's extracurricular vaccination order.112 Each is an instrument of an authority with power over the function it regulated, and each limited that function in terms.
The counterparties
Schools and park districts
Every public school in the country closed in March 2020, most for the balance of the school year, under State orders; remote and hybrid orders governed 2020-21; and the infection-prevention and exposure-control orders of the 2021-22 school year, universal masking and the quarantine of exposed students and staff among them (California's K-12 guidance of July 12, 2021; Illinois Executive Order 2021-18; Louisiana; New Mexico; Oregon's rule of August 2; Washington; New Jersey Executive Order 251 of August 9; New York's 10 NYCRR 2.60 of August 27; Connecticut Executive Order 13A; Delaware's rule of August 16; the District; Hawaii; Kentucky Executive Order 2021-585 of August 10 and 702 KAR 1:195E; Pennsylvania's order effective September 7; Nevada; Virginia's order of August 12; Massachusetts DESE's requirement of August 25; Rhode Island Executive Order 21-87; Maryland; North Carolina S.L. 2021-130; Harris County's order of August 12; Oakland and Wayne counties' orders of August 24 and 27; Denver's and Boulder's orders of August 17 and 10; Ottawa County's of August 6) governed every youth league, camp, clinic and swim program that used a school gymnasium, field or pool and every coach, instructor and part-time employee who also worked in a school.113 The park districts and municipal recreation departments that own the fields, pools, rinks and program buildings of youth sport closed them by their own orders: the Chicago Park District from March 15, 2020 through the spring and the lakefront until June 22; the Minneapolis Park and Recreation Board from March 13 (its closure announcement is cited as context); King County Parks from March 20; Seattle's community centers, pools, fields and courts from March 2020; Louisville's and Lexington's amenities from March 14 and 30; Cincinnati and Covington's playgrounds, courts and fields from March 27; Tampa's recreation facilities and pools into May 2020; Pinellas County's pools and playgrounds to May 28, 2020; Anne Arundel County's playgrounds from March 31, 2020.114
Convention centers, venues and landlords
The convention and exhibition authorities closed their halls and converted several to field hospitals: McCormick Place (closed from March 2020 under Illinois Executive Order 2020-10 and reopened July 2021; the Authority's announcements are cited as context), the Javits Center, the Boston Convention and Exhibition Center (Boston Hope, April 2020), the Orange County Convention Center (a State testing site from March 25, 2020), the Pennsylvania Convention Center (re-activation frameworks of February and June 2021), and Denver's Colorado Convention Center (closed by order March 13, 2020).115 The eviction and foreclosure moratoria of the CARES Act and the CDC, and the local moratoria of Seattle, Boston, Somerville, Los Angeles, Philadelphia and others, governed the landlords and lenders of every gym, studio and venue and the tenants who were its members and staff.116
Courts, transit and public offices
The permit, licensing and special-event offices through which this industry obtains its approvals closed to walk-in service in March 2020 and moved to remote operation; the courts that enforce its contracts suspended jury trials and civil calendars for most of 2020 and in the third quarter of 2021 re-imposed face-covering and screening requirements (Maricopa County from August 9; the Eighth Judicial District of Nevada from July 19; Hamilton County from August 11; Franklin County from August 6; the Fifth Judicial District of Pennsylvania from August 10; Harris County from August 12; the Ninth Circuit of Florida from August 23; Utah's courts from July 30; Hawaii's postponement of jury trials from August 16; Texas's Fortieth Emergency Order from August 1; Oregon's Chief Justice Order 21-039 of September 16); the transit agencies on which the workforce and the audience commute cut service, required rear-door boarding, suspended fares and enforcement, and from February 1, 2021 enforced the federal conveyance order with their own penalties (the MTA's $50 fine; SacRT's "No Mask, No Ride"; Valley Metro; Metro Transit; SMART; the MBTA; RTD; GCRTA; MDOT MTA, whose Express BusLink routes remained suspended in July 2021).117
The ecosystem
The mechanisms
Six mechanisms carried orders addressed to others into this industry's operation, each treated as the order it is under Q&A-12's logic and the statute's text. Supply chain and borders: the entry proclamations, the land-border notices, the Title 42 order, the Conditional Sailing Order and the pre-departure testing order closed the movement of foreign artists, athletes, tours and cross-border audiences from March 2020 to November 8, 2021, and the foreign orders of Canada (entry prohibition from March 21, 2020, eased for vaccinated Americans only from August 9, 2021), the European Union (Council Recommendation 2020/912 excluding United States travellers from July 1, 2020, amended August 30, 2021), China (entry suspension from March 28, 2020) and Japan (states of emergency through September 30, 2021) closed the reciprocal routes on which touring and international sport depend.118 Workforce, schools and child care: the school closures of 2020, the remote and hybrid orders of 2020-21, the FFCRA leave mandate to December 31, 2020, the State paid-leave ordinances (Pittsburgh's Chapter 626A and 626B; Los Angeles's Supplemental Paid Sick Leave), the quarantine and isolation orders of every State and county, and the vaccinate-or-test mandates of 2021 on school, health-care and State employees removed the industry's part-time workforce from its floors by law.119 Travel, tourism and gatherings: the interstate traveler quarantines of New York (Executive Order 205, June 25, 2020), Connecticut (Executive Orders 7BBB and 7III), New Jersey, Hawaii (Safe Travels), Alaska, Chicago (the Emergency Travel Order of July 6, 2020), New Mexico, Maine, Vermont, Rhode Island, Massachusetts, Kentucky and Kansas made every touring company, visiting team and destination patron subject to a fourteen-day quarantine or a test, and the gathering caps of every State ended the festival, tournament and fan-event calendar.120 The organizers' own notices of the seasons, tours, festivals, shows and tournaments of this industry that those orders cancelled, postponed or emptied are collected in the Library's group-meetings collection and on this page. Courts and public offices: stated above. Transit: the conveyance mask order, the TSA directives and the transit agencies' rules conditioned every commute and every road trip from February 1, 2021 through the third quarter of 2021.121 Health care as counterparty: the elective-procedure orders of 2020 governed the athletic trainers, team physicians and sports-medicine clinics of every league, and the health-care-worker vaccination orders of California (July 26 and August 5, 2021), New York (August 26), New Jersey (August 6), Connecticut (August 6), Massachusetts (August 4), Maine (August 12), Oregon (August 5 and 25), Washington (August 9 and 20), Rhode Island (August 17), Delaware (September 10), Colorado (August 30), Los Angeles County (August 12), Denver (August 2) and Philadelphia (August 16) conditioned the medical staff of every venue and the part-time staff who also worked in a clinic.122
Tribal and territorial authorities
The Navajo Nation's public health emergency orders closed its casinos and recreation facilities and imposed curfews and lockdowns from March 20, 2020 through 2021; the Mescalero Apache Tribe's orders closed its resort and casino from March 20, 2020 and reimposed airborne-transmission controls, a face covering for every employee, agent and contractor, of the Tribe's enterprises by Executive Order 21-05 of August 19, 2021; the Yakama Nation, the Ho-Chunk Nation, the Pueblo of Laguna and the Poarch Band of Creek Indians closed their casinos and entertainment venues by tribal order; Puerto Rico closed theaters, gyms, casinos and every gathering on March 15, 2020 by Administrative Bulletin OE-2020-023 and in the third quarter of 2021 conditioned theaters, cinemas, stadiums, gyms and casinos on vaccination or a test by OE-2021-063, OE-2021-064 and OE-2021-065 (issued August 11, 19 and 30, 2021; effective August 23, August 30 and September 2); Guam conditioned gyms on vaccination by Executive Orders 2021-19 and 2021-20 of August 20 and 24, 2021; the Virgin Islands, the Northern Mariana Islands and American Samoa closed and conditioned their venues by supplemental orders through 2021. Each is an order of an appropriate governmental authority, as the Notice's own Q&A-4 and section 3121(e) confirm for the territories, and each reached the wages of employers whose operations lay within those jurisdictions.123
The standing duties
Beneath the six layers above lay a seventh that bound every employer in this industry through the six quarters whether or not any order named it: the standing statutes that commanded every person to prevent and control communicable disease and every employer to furnish a safe and healthful workplace, the offenses that punished disobedience of health and emergency orders, and, in nineteen States, Texas and Arizona among those stated here, the liability shields that protected only the business that complied with governmental standards, guidance and protocols.124 Each is an order from an appropriate governmental authority on the Suspension Clause's own terms: a statute or rule that commands conduct is an order, its legislature or agency is an appropriate governmental authority, and the pandemic directives gave each its content. The layer is stated here for eight States (Texas, Ohio, New York, Arizona, Pennsylvania, New Jersey, Indiana and California); every State's standing duties are set out on the standing duties page.
The orders' own conditions of operating
The measures the Service calls "beyond the order" were, in this industry, the order's own condition of operating, and the verbs are commands. Texas: "Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy of the establishment," and "Every person in Texas shall wear a face covering ... when inside a commercial entity," each an offense under Government Code section 418.173 (Executive Orders GA-28 and GA-29).125 Ohio: "Businesses must require all employees to wear facial coverings," and the sports and entertainment-venue orders of August 2020 provide "Mandatory Requirements" (Ex. OH-019; Ex. OH-033; Ex. OH-034).126 New York: reopened businesses "must be operated subject to the guidance promulgated by the Department of Health" (Executive Order 202.31).127 Arizona: every business that "serves the public or is an employer shall develop, establish and implement policies based on guidance from" the CDC, the Department of Labor, OSHA and ADHS (Ex. AZ-019).128 Pennsylvania conditioned in-person operation on full compliance with the Worker Safety Order and applicable guidance (Ex. PA-011).129 New Jersey: "All health clubs shall comply with the attached Department of Health standards" (Ex. NJ-075).130 Indiana commanded every employer to institute a plan of safeguards (Executive Order 20-26),131 and California made distancing a condition of patronizing a reopened sector (the State Public Health Officer's order of May 7, 2020),132 this analysis keeping each order's own line between command and recommendation.133
The standing statutes
Texas states the duty on the person: "The state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease" (Health and Safety Code § 81.002, Ex. DUT-TX-001), with control measures on persons and places, a Class B misdemeanor for refusing them, a third-degree felony for disobeying an area-quarantine order and the emergency act's offense recited in every general order (Ex. DUT-TX-002; Ex. DUT-TX-006; Ex. DUT-TX-005; Ex. DUT-TX-012).134 Ohio has commanded since 1974 that no person "having charge of a public conveyance or place of public accommodation, amusement, resort, or trade" with reason to believe its users are exposed to a dangerous contagious disease "shall negligently fail to take reasonable measures to protect the public from exposure to the contagion" (R.C. 3701.81(C), Ex. DUT-OH-007), and made violation of a Director's order a second-degree misdemeanor, recited in every Director's Order (R.C. 3701.352, 3701.99(C), Ex. DUT-OH-004; Ex. DUT-OH-005).135 The other six each made disobeying a health or emergency order an offense in terms (Ex. DUT-NY-002; Ex. DUT-AZ-007; Ex. DUT-PA-007; Ex. DUT-NJ-006; Ex. DUT-IN-015; Ex. DUT-CA-007), and the Governor of Pennsylvania answered the Service's question: "Does an Order mean mandatory? Is this a law? Yes" (Ex. DUT-PA-015).136
The workplace-safety duty ran beside those acts. Section 5(a)(1) of the Occupational Safety and Health Act bound every private employer: "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" (29 U.S.C. § 654(a)(1), Ex. DUT-FED-001), restated by OSHA in March 2020 and enforced by citation from September 10, 2020 (Ex. LAW-487; Ex. DUT-FED-073).137 The States' own statutes state the duty: Texas, "a place of employment that is reasonably safe and healthful" (Labor Code § 411.103, Ex. DUT-TX-013); Ohio, "a place of employment which shall be safe for the employees therein and for frequenters thereof" (R.C. 4101.11, Ex. DUT-OH-013), a gym's or theater's frequenters being its patrons; New York, Labor Law § 200 and, from July 2021, the HERO Act's "each employer shall establish an airborne infectious disease exposure prevention plan" (Ex. DUT-NY-013; Ex. DUT-NY-014); and the other five in the same terms (Ex. DUT-AZ-008; Ex. DUT-PA-006; Ex. DUT-NJ-009; Ex. DUT-IN-005; Ex. DUT-CA-009), California adding the Cal/OSHA emergency temporary standard from November 30, 2020.138 From the health directives forward, distancing, screening, sanitation and face coverings were the statutes' own requirement.
The liability shields
Two of the eight legislatures fixed the standard of care as compliance. Texas protects a business unless the claimant proves it "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols," for every action commenced on or after March 13, 2020 (Civil Practice and Remedies Code § 148.003(a)(1)(B), Ex. DUT-TX-014; Ex. DUT-TX-015); 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 (Ex. DUT-AZ-010).139 Ohio's and Indiana's shields set a culpability floor without a compliance clause and are cited only for what they say (Ex. DUT-OH-020; Ex. DUT-IN-006): Ohio's Am. Sub. H.B. 606 provides that a government order or guideline "shall neither create nor be construed as creating a duty of care," so that Ohio's compulsion lies in R.C. 3701.352, 3701.81(C) and 4101.11 and the orders' own conditions.140 New York and New Jersey shielded health-care providers only, New York on compliance with applicable law and New Jersey for acts in support of the State's response, and Pennsylvania and California enacted no business shield, leaving the ordinary standard of care (Ex. DUT-NY-016; Ex. DUT-NJ-007; Ex. DUT-PA-012; Ex. DUT-CA-017; Ex. DUT-CA-013).141 Under every regime what a business owed was compliance; an employer that distanced its floor, screened its staff, capped its classes and masked its patrons was not choosing; it was complying. The sixth answer in the Service's-positions section applies the point to Q&A-14.