Colleges, Universities and Community Colleges

The six quarters

In each of the six quarters, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19 were in force on the first day and on the last day, and in each quarter they reached the functions of this industry directly and by name. This section states, for each quarter, the orders in force by layer with first-day and last-day status, the functions they reached, and the finding in Tri-State's terms. The third quarter of 2021 is written as a self-contained section, because the Service's letters most often say of that quarter that no orders were in effect, and the record answers with the list.

The second quarter of 2020

The orders in force

The quarter's proof begins March 13, 2020, because wages paid after March 12, 2020 were claimed on the second-quarter Form 941.⁴⁶ On April 1, 2020 in-person instruction was prohibited or confined to distance learning at every campus in the United States: by higher-education orders in Washington (Ex. WA-008), Oregon (Ex. OR-059), New Jersey (Ex. NJ-002; Ex. NJ-004), Virginia (Ex. VA-006), Georgia (Ex. GA-003; Ex. GA-008), Alabama (Ex. AL-005), South Carolina (Ex. SC-002) and Wyoming (Ex. WY-004); by the distance-learning clauses of the stay-at-home orders in Louisiana, whose proclamation of March 19 also authorized every public postsecondary institution to substitute online instruction "for the duration of the declared emergency" (Ex. LA-004; Ex. LA-005), Colorado, whose Safer at Home order limited postsecondary in-person instruction by name from April 27 (Ex. CO-012; Ex. CO-016; Ex. CO-019), Illinois (Ex. IL-005), Ohio (Ex. OH-011), Michigan (Ex. MI-011), Indiana (Ex. IN-006), Wisconsin (Ex. WI-002), Minnesota (Ex. MN-010; from May 11, Ex. MN-019), Tennessee (Ex. TN-007), North Carolina (Ex. NC-005), Oklahoma (Ex. OK-006; Ex. OK-007), West Virginia (Ex. WV-009), Kentucky (Ex. KY-010), Arizona (Ex. AZ-005; Ex. AZ-010), Nevada (Ex. NV-004; Ex. NV-012), New Mexico (Ex. NM-006), Hawaii (Ex. HI-004), Kansas (Ex. KS-009), Montana (Ex. MT-009), Idaho (Ex. ID-003), Utah (Ex. UT-004), Maine (Ex. ME-011), New Hampshire (Ex. NH-009), Vermont (Ex. VT-010), Delaware (Ex. DE-005), Maryland (Ex. MD-007), the District (Ex. DC-006), Mississippi (Ex. MS-009), Missouri (Ex. MO-004, effective April 6), Texas (Ex. TX-008), Florida (Ex. FL-010, effective April 3), Rhode Island (Ex. RI-009; Ex. RI-010), Massachusetts (Ex. MA-008), Connecticut (Ex. CT-007), New York (Ex. NY-002) and Pennsylvania (Ex. PA-002; Ex. PA-003; Ex. PA-004; Ex. PA-006); by county order in Riverside, San Diego, Miami-Dade and Palm Beach Counties and Miami Beach (Ex. MET-RIV-004; Ex. MET-SAN-002; Ex. MET-SAN-003; Ex. MET-MIA-003; Ex. MET-MIA-044; Ex. MET-MIA-087); and by the directives of the State university systems, which closed residence halls, sent students home and cancelled commencements (Ex. SEC-27-007; Ex. SEC-27-008; Ex. AGY-ST-EDUCATION-HIGHER-ED-027; Ex. AGY-ST-EDUCATION-HIGHER-ED-051; Ex. AGY-ST-EDUCATION-HIGHER-ED-028; Ex. AGY-ST-EDUCATION-HIGHER-ED-060). In the States without a general stay-at-home order the campuses were reached by the instruments that closed the schools, capped gatherings, confined the vulnerable and quarantined the travelers, and were closed to in-person instruction by their own systems' directives (Ex. IA-002; Ex. SEC-27-008; Ex. NE-005; Ex. NE-007; Ex. ND-005; Ex. ND-014; Ex. ND-021; Ex. SD-005; Ex. SD-007; Ex. SD-009; Ex. AR-035). The travelers were quarantined: Hawaii (Ex. HI-003; Ex. HI-005), Alaska (Ex. AK-012; Ex. AK-038), Rhode Island (Ex. RI-007; Ex. RI-008), Vermont (Ex. VT-012), Maine (Ex. ME-013), Kansas (Ex. KS-053), Texas (Ex. TX-006; Ex. TX-007; Ex. TX-013), Florida (Ex. FL-012), Oklahoma (Ex. OK-010), South Carolina (Ex. SC-007), Arizona (Ex. AZ-012), Kentucky (Ex. KY-011), Delaware (Ex. DE-010), Montana (Ex. MT-010), West Virginia (Ex. WV-009), North Dakota (Ex. ND-014; Ex. ND-021), Wyoming (Ex. WY-010). The federal layer: the entry proclamations (Ex. ECO-A-001; Ex. ECO-A-002; Ex. ECO-A-003; Ex. ECO-A-004; Ex. ECO-A-005), the SEVP terms (Ex. SEC-15-004), the consular suspension (Ex. AGY-FED-LABOR-IMMIGRATION-060), the federal leave mandate from April 1 (Ex. FED-170), Proclamations 10014, 10043 and 10052 (Ex. ECO-A-010; Ex. AGY-FED-LABOR-IMMIGRATION-012; Ex. ECO-A-011). On June 30, 2020 the campuses were remote for the summer and the restart orders had been issued but were not yet operative: New Jersey's laboratories and clinical programs from July 1 (Ex. NJ-024), Washington's general instruction from August 1 (Ex. WA-038), Oregon's minimum standards from June 14 (Ex. OR-021), New York's Phase Four guidance from June 26 in five regions (Ex. NY-031; Ex. NY-112), Minnesota's distance-learning model to May 31 followed by the Higher Ed Plan regime (Ex. MN-019), Virginia's cessation of in-person instruction to June 10 and its 50-person campus cap from June 5 (Ex. VA-010; Ex. VA-013), South Carolina's continuing authorization of virtual instruction and restricted campuses (Ex. SC-024; Ex. SC-025), and Wyoming's Sixth Continuation, authorizing on-site instruction only under conditions (Ex. WY-018); the tri-State quarantine took effect June 25 (Ex. NY-006; Ex. CT-022; Ex. NJ-087) and Proclamation 10052 June 24 (Ex. ECO-A-011).⁴⁷

How they reached the functions

• IN: the in-person form was prohibited by name or confined to distance learning in every State.
• HS: residence halls were emptied by directive, dining was closed except for take-away service and dormitories were designated as quarantine shelter (Ex. SEC-27-007; Ex. AK-016; Ex. MT-005; Ex. IL-004).
• AT: every gathering cap ended the spring season, the performances and the events (Ex. NJ-002; Ex. VA-006; Ex. WY-005).
• RS: research was confined to "critical research" (Ex. IL-005; Ex. OH-011), and clinical placements closed with the hospitals' elective services and visitation bans (Ex. AL-005).
• AD: campus visits and commencements were cancelled, the consulates closed, entry was suspended and the SEVP terms were imposed.
• ST: libraries, recreation centers and health centers closed (Ex. NJ-002; NJOEM Administrative Order 2020-3 of March 20, 2020).
• CE: dual enrollment, student teaching, camps, conferences and contract training ended with the school closures and gathering caps (Ex. GA-003; Ex. IA-009).
• PY: the systems directed the closures.
• HR: hiring was frozen by the office closures, and H-1B and J-1 entry was suspended from June 24 (Ex. ECO-A-011).
• OP: offices were closed or reduced to minimal staff (Ex. NY-002; Ex. PA-002; Ex. SEC-27-007).
• WF: schools closed in every State and federal paid leave became mandatory (Ex. FED-170).
• CB: students were confined to home and quarantined on arrival, and international students could not enter.

The finding

During the calendar quarter beginning April 1, 2020 and ending June 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the higher-education closure orders and stay-at-home orders of every State and the District of Columbia (Ex. WA-008; Ex. OR-059; Ex. VA-006; Ex. GA-009; Ex. AL-005; Ex. SC-002; Ex. WY-004; Ex. NJ-002; Ex. IL-005; Ex. NY-002; Ex. PA-002; Ex. CA-002), the county closure orders (Ex. MET-RIV-004; Ex. MET-SAN-002; Ex. MET-MIA-003), the directives of the State university systems (Ex. SEC-27-007; Ex. AGY-ST-EDUCATION-HIGHER-ED-027), the traveler quarantines (Ex. HI-003; Ex. RI-008; Ex. VT-012; Ex. TX-006), the federal entry proclamations, consular suspension and student-visa rules (Ex. ECO-A-003; Ex. AGY-FED-LABOR-IMMIGRATION-060; Ex. SEC-15-004) and the federal leave mandate (Ex. FED-170), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by terminating in-person instruction, emptying residence halls and dining halls, cancelling commencements, athletics and events, confining research to critical work, closing libraries and student services, closing the consulates and borders to international students and scholars, sending administrative staff home and keeping faculty and staff home with their children.

The third quarter of 2020

The orders in force

On July 1, 2020 New Jersey permitted only laboratory, clinical and hands-on instruction under the Secretary of Higher Education's standards (Ex. NJ-024); Washington's campuses remained under the stay-home proclamation pending August 1 (Ex. WA-038); Oregon's were under EO 20-28's minimum standards (Ex. OR-021); New York's were under the Interim Guidance with its plan requirement (Ex. NY-112); Virginia's were under EO 67's Phase Three conditions from July 1 (Ex. VA-014); California's were under the stay-at-home order and, from August 7, the institutions-of-higher-education guidance barring indoor lectures in monitored counties (Ex. AGY-ST-EDUCATION-HIGHER-ED-009); Minnesota's were under the Stay Safe orders and, from August 26, EO 20-85's Higher Ed Plan requirement (Ex. MN-029); Alabama's were under the June 1 school rules and, from July 29, the face-covering rule for colleges (Ex. AL-021; Ex. AL-030); South Carolina's were under EO 2020-42's continuation of virtual instruction and restricted campuses (Ex. SC-025); Wyoming's were under the Seventh through Thirteenth Continuations with their conditions on on-site instruction (Ex. WY-020; Ex. WY-022; Ex. WY-024; Ex. WY-026; Ex. WY-028); West Virginia's could resume only "in accordance with any guidelines and/or regulations promulgated by any applicable governing body" (Ex. WV-044); Kansas's were under the Department of Health and Environment's quarantine mandate (Ex. KS-054). The arriving students were quarantined by New York, New Jersey and Connecticut (Ex. NY-006; Ex. NJ-087; Ex. CT-022; Ex. CT-023, with a $1,000 penalty from July 24), Massachusetts from August 1 (Ex. MA-025, $500 per day), New Mexico from July 1 (Ex. NM-024), the District from July 27 (Ex. DC-081), Chicago from July 6 (Ex. MET-CHI-019), Kansas (Ex. KS-054), Vermont (Ex. VT-014), Maine (Ex. ME-026), Hawaii (Ex. HI-003) and Alaska (Ex. AK-012; Ex. AK-038). The college towns acted: Iowa closed the bars of six university counties on August 27 (Ex. IA-023); Ames, Bloomington and Monroe County, Stillwater, Starkville and Durham adopted face-covering ordinances reciting their campuses, airborne-transmission controls on every indoor public place of the college town (Ex. IA-064; Ex. IN-085; Stillwater Ordinance No. 3452 of July 9, 2020, as recited and extended by Ordinance No. 3463, Ex. OK-085; Ex. MS-070; Ex. NH-077); Mississippi capped college stadiums at 25 percent and prohibited game-day gatherings from August 20 (Ex. MS-036; Ex. MS-039); Boulder County prohibited gatherings of persons aged 18 to 22 and confined 36 student properties from September 24 (Ex. MET-DEN-100); Denver issued its Public Health Order for institutes of higher education on September 22 (Ex. MET-DEN-037); Utah County acted the day Provo and Orem were moved to orange (Ex. MET-SLC-053; Ex. UT-023); Boone County recited the University of Missouri's resumption in its September 16 order (Ex. MO-051); Wisconsin's Governor recited the campus outbreaks in EO #90 (Ex. WI-010); Bexar, Harris, Dallas and Tarrant Counties barred on-campus school instruction until after September 7 or September 28 (Ex. MET-SAT-036; Ex. MET-SAT-040; Ex. MET-HOU-040; Ex. MET-DFW-026, the August 10, 2020 order rescinding and reciting Dallas County's July 16 school-closure order; Ex. MET-DFW-049); Dallas County instructed institutions of higher education to file safety plans 72 hours before students returned (Ex. MET-DFW-024). The federal layer: the July 6 SEVP rule and its July 14 rescission (Ex. SEC-15-005); the proclamations (Ex. ECO-A-003; Ex. ECO-A-011; Ex. AGY-FED-LABOR-IMMIGRATION-012); the consular posture (Ex. AGY-FED-LABOR-IMMIGRATION-061); the federal leave mandate (Ex. FED-170). On September 30, 2020 the fall terms were running under those conditions, with New York's daily reporting order added September 9 (Ex. NY-050).⁴⁸

How they reached the functions

• IN: the mode, date, capacity and conditions of instruction were fixed by order in New Jersey, Washington, Oregon, New York, Minnesota, Virginia, California, Wyoming, West Virginia and South Carolina, and indoor lectures were barred in California's monitored counties.
• HS: the halls reopened at reduced density with quarantine and isolation housing under State conditions (Ex. NY-112; Ex. WA-038; Ex. OR-021), and student properties were confined in Boulder (Ex. MET-DEN-100).
• AT: stadiums were capped and tailgating prohibited (Ex. MS-036), and the seasons were postponed (Ex. AGY-ST-EDUCATION-HIGHER-ED-021, context).
• RS: research ran under minimum standards (Ex. OR-021; Ex. MN-029).
• AD: arriving students were quarantined, international students were under the July 6 rule for eight days and the proclamations all quarter, and campus visits were under gathering caps.
• ST: testing centers were created by order (Ex. NY-112), and health centers operated under the campus plans.
• CE: camps and conferences were under gathering caps, and dual enrollment was under the K-12 remote orders.
• PY: the plan-approval regimes governed (Ex. NJ-024; Ex. MN-029; Ex. NY-112).
• HR: H-1B and J-1 entry was suspended (Ex. ECO-A-011).
• OP: telework mandates continued in New Jersey, New York and elsewhere (Ex. NJ-004; Ex. NY-131).
• WF: the K-12 remote and hybrid orders and the federal leave mandate governed the workforce.
• CB: every arriving student was quarantined, and the bars were closed in the college towns.

The finding

During the calendar quarter beginning July 1, 2020 and ending September 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the conditional-reopening orders for higher education (Ex. NJ-024; Ex. NJ-032; Ex. WA-038; Ex. OR-021; Ex. NY-031; Ex. NY-112; Ex. NY-050; Ex. MN-029; Ex. VA-014; Ex. AGY-ST-EDUCATION-HIGHER-ED-009; Ex. WY-024), the traveler quarantines (Ex. NY-006; Ex. CT-023; Ex. MA-025; Ex. NM-024; Ex. DC-081; Ex. MET-CHI-019), the college-town and county orders (Ex. IA-023; Ex. MS-036; Ex. MET-DEN-100; Ex. MET-DEN-037; Ex. MET-DFW-024) and the federal student-visa, entry and leave instruments (Ex. SEC-15-005; Ex. ECO-A-011; Ex. FED-170), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by fixing the date on which instruction could resume and the terms on which it could be delivered, by capping housing, dining, stadiums and gatherings, by quarantining every arriving student for fourteen days, by suspending the entry of international students and scholars, and by requiring plans, testing, reporting and exposure controls as conditions of operating at all.

The fourth quarter of 2020

The orders in force

On October 1, 2020 the fall conditions were in force everywhere, Denver's higher-education order was revised October 16 (Ex. MET-DEN-037), Washington's winter conditions took effect October 20 (Ex. WA-046), and the quarantines of New York, Connecticut and Massachusetts continued (Ex. NY-006; Ex. CT-028; Ex. MA-025). The winter re-tightening then reached the campuses by name: Michigan's MDHHS ordered colleges to remote instruction from November 18 to December 20 and prohibited indoor non-residential gatherings into January, excepting "school and university cafeterias" from the dining closure (Ex. MI-060; Ex. MI-061; Ex. MI-062); Philadelphia sent colleges online from November 20 (Ex. MET-PHL-010); Utah prohibited organized athletic and extracurricular gatherings and ordered weekly testing of every residential and in-person student from January 1, 2021, carried by four public health orders naming institutions of higher education (Ex. UT-029; Ex. UT-030; Ex. UT-031; Ex. UT-032; Ex. UT-033; Ex. UT-034); Oregon's freeze and county framework kept higher education under EO 20-28 (Ex. OR-033; Ex. OR-035); Colorado's Level Red, Illinois's Tier 3, New Mexico's reset of November 16 to 30 and California's Regional Stay at Home Order governed the end of the term (Ex. CA-020); Chicago capped higher-education gatherings at 50 indoors (Ex. MET-CHI-053); San Diego County's order of November 20 named "schools and institutions of higher education" (Ex. MET-SAN-016); Ohio prohibited gatherings of more than ten outside a "dormitory living unit" from November 17 (Ex. OH-038); Vermont limited gatherings to a single household with a provision for "returning college students" and paused its travel map with a universal quarantine (Ex. VT-034; Ex. VT-080); Maryland and Pennsylvania ordered every traveler to test or quarantine, reaching students returning for the spring (Ex. MD-023; Ex. MD-050; Ex. PA-021; Ex. PA-027); Virginia imposed a modified stay-at-home order and a ten-person cap from December 14 (Ex. VA-016); the District prohibited high-contact sports except for "universities and professional leagues under approved plans" (Ex. DC-080); Mississippi carried its stadium caps (Ex. MS-046); Bexar County's directive of December 8 extended to higher education (Ex. MET-SAT-054); Wyoming's continuations ran on (Ex. WY-030; Ex. WY-032; Ex. WY-033; Ex. WY-038). The federal layer: the proclamations (Ex. ECO-A-003; Ex. ECO-A-011), Proclamation 10131 of December 31 carrying 10014 and 10052 into 2021 (Ex. ECO-A-012), the federal leave mandate to December 31 (Ex. FED-170). On December 31, 2020 the Michigan gathering prohibition, the Utah testing order, the Oregon framework, the Washington conditions, the New York guidance, the New Jersey standards, the Virginia stay-at-home order, the California regional order and the traveler orders were all in force.⁴⁹

How they reached the functions

• IN: instruction was sent back to remote delivery by order in Michigan and Philadelphia, conditioned on weekly testing in Utah, and placed under winter conditions in Washington, Oregon, New York, New Jersey, Minnesota and Virginia.
• HS: residential students were tested weekly in Utah, isolation housing was required in Washington, and cafeterias were excepted from closures because the closures otherwise reached them (Ex. MI-061).
• AT: organized events were prohibited in Utah, high-contact sports were prohibited in the District except under approved plans, and stadiums were capped in Mississippi.
• RS: research ran under the frameworks.
• AD: December commencements fell under gathering caps, and entry remained suspended.
• ST: testing centers operated under the Utah and Washington orders.
• CE: winter camps and conferences were prohibited by the gathering caps.
• PY: the systems' plans were revised to the winter orders.
• HR: H-1B and J-1 entry was suspended through March 31, 2021 (Ex. ECO-A-012).
• OP: telework was re-imposed in Pennsylvania, Rhode Island, Vermont, New Jersey, Oregon, Colorado and California.
• WF: schools closed again in Kentucky, Michigan, New Mexico and West Virginia, and the federal leave mandate ran to December 31.
• CB: every student returning for the spring was quarantined or tested in Maryland, Pennsylvania, New York, Connecticut, Massachusetts and Vermont.

The finding

During the calendar quarter beginning October 1, 2020 and ending December 31, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the winter re-closure and testing orders (Ex. MI-060; Ex. MI-061; Ex. MET-PHL-010; Ex. UT-029; Ex. UT-034; Ex. WA-046; Ex. OR-035; Ex. CA-020; Ex. VA-016; Ex. VT-034; Ex. DC-080), the continuing conditional-operation orders (Ex. NY-112; Ex. NJ-032; Ex. OR-021; Ex. MN-032; Ex. MET-DEN-037), the traveler orders (Ex. MD-023; Ex. PA-021; Ex. NY-006; Ex. VT-080) and the federal entry and leave instruments (Ex. ECO-A-012; Ex. FED-170), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by returning instruction to remote delivery by order, by conditioning residence on weekly testing, by prohibiting athletics and events, by quarantining returning students and by keeping the campus workforce under telework mandates and school closures.

The first quarter of 2021

The orders in force

On January 1, 2021 Utah's weekly testing of residential and in-person students took effect (Ex. UT-029; Ex. UT-034; Ex. AGY-ST-EDUCATION-HIGHER-ED-046); Michigan's gathering prohibition ran to January 31 (Ex. MI-062; Ex. MI-063); Rhode Island's EO 21-04 of January 14 permitted in-person learning only after surveillance testing of all students (Ex. RI-033); West Virginia suspended winter sports except those "conducted by accredited higher education institutions" (Ex. WV-056) and, on February 19 and March 24, again addressed colleges by name (Ex. WV-059; Ex. WV-062); Kentucky's Senate Bill 1 of February 2 put every order restricting postsecondary institutions on a thirty-day clock, and was enjoined by the Franklin Circuit Court from March 2021 until the Supreme Court of Kentucky ordered the injunction dissolved on August 21, 2021 (Ex. KY-041; Ex. KY-055); Utah's S.B. 107 of March 24 ordered 75 percent in-person courses for fall 2021 (Ex. UT-046); the Oregon, Washington, New York, New Jersey, Virginia, California, Illinois, Colorado, New Mexico and Minnesota frameworks continued (Ex. OR-035; Ex. WA-046; Ex. NY-112; Ex. NJ-024; Ex. VA-016; Ex. MN-032); Ohio's gathering prohibition ran to April 5 (Ex. OH-038; Ex. OH-043); Mississippi amended its stadium and arena caps (Ex. MS-050; Ex. MS-051); Wyoming's continuations named the colleges through March 31 (Ex. WY-038; Ex. WY-042; Ex. WY-046; Ex. WY-050); Texas's 50 percent rollbacks in the university trauma service areas ran to March 10 (Ex. TX-025; Ex. TX-026; Ex. TX-029); Bexar County's Fourth Amended Directive provided that "[c]olleges and universities should operate virtually" (Ex. MET-SAT-056); the quarantines of New York (to April 1), Connecticut (to March 19), Massachusetts (to March 22), Pennsylvania (to March 1), Kansas, Hawaii, Vermont and the District continued (Ex. NY-047; Ex. CT-034; Ex. MA-025; Ex. PA-027; Ex. KS-055; Ex. HI-003; Ex. HI-031; Ex. VT-080; Ex. DC-012); Washington quarantined travelers from December 21 (Ex. WA-054; Ex. WA-059). The federal layer: Proclamation 10143 continued the entry suspensions January 25 (Ex. FED-207); the CDC testing order took effect January 26 (Ex. FED-042); the conveyance mask order and the TSA directives took effect February 1 (Ex. FED-020; Ex. FED-050); Executive Order 13991 and M-21-15 governed every federal facility (Ex. FED-060; Ex. FED-270); Proclamation 10052 expired March 31 (Ex. ECO-A-012); Congress re-enacted the Suspension Clause on March 11 (Ex. FED-174). On March 31, 2021 the Oregon, Washington, New York, New Jersey, Virginia and Rhode Island campus orders, the Utah testing regime, the Kansas and Hawaii quarantines, the conveyance order and the proclamations were in force.⁵⁰

How they reached the functions

• IN: weekly testing was a condition of attending any in-person class in Utah, surveillance testing of every student was a condition of in-person learning in Rhode Island, and the conditional frameworks governed elsewhere.
• HS: residential students were tested weekly and isolation housing was required.
• AT: winter sports were suspended in West Virginia except at accredited institutions, arenas were capped at 50 percent in Mississippi, and the Texas trauma-service-area rollbacks applied.
• RS: research ran under the frameworks.
• AD: entry was suspended from the Schengen Area, the United Kingdom, Ireland, Brazil and South Africa, and inbound testing was required.
• ST: testing centers operated under the Utah and Rhode Island orders.
• CE: gathering caps governed camps and conferences.
• PY: the Kentucky and Utah legislatures acted on campus orders.
• HR: H-1B and J-1 entry was suspended to March 31.
• OP: telework and office caps continued in Connecticut, New Jersey, New York, Pennsylvania and Rhode Island.
• WF: every campus shuttle and commuter bus was under the federal conveyance order from February 1, and the school hybrid orders continued.
• CB: returning students were quarantined or tested in six States.

The finding

During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the campus testing and conditional-operation orders (Ex. UT-034; Ex. UT-037; Ex. RI-033; Ex. WA-046; Ex. OR-035; Ex. NY-112; Ex. NJ-024; Ex. VA-016; Ex. WV-056; Ex. MI-063; Ex. MET-SAT-056), the traveler orders (Ex. NY-047; Ex. CT-034; Ex. MA-025; Ex. PA-027; Ex. WA-054), the federal entry, testing and conveyance orders (Ex. FED-207; Ex. FED-042; Ex. FED-020; Ex. FED-050) and the federal workplace orders (Ex. FED-060; Ex. FED-270), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by conditioning attendance and residence on testing, by fixing capacity and mode of instruction, by suspending athletics, by quarantining travelers and by suspending the entry of students and scholars, in the quarter in which Congress, on March 11, 2021, re-enacted the identical test for the third and fourth quarters of the year.

The second quarter of 2021

The orders in force

On April 1, 2021 the campus conditions of Washington, Oregon, New York, New Jersey, Virginia, Rhode Island, Minnesota, California, Illinois, New Mexico, Massachusetts, Connecticut and Utah were in force (Ex. WA-046; Ex. OR-021; Ex. NY-112; Ex. NJ-024; Ex. VA-016; Ex. RI-033; Ex. MN-038; Ex. CA-029; Ex. UT-042); Louisiana kept every "postsecondary" institution under a face-covering requirement for every student, employee and visitor to the last day of the academic year, one of the workplace infection-prevention and exposure-control conditions of its 2021 proclamations (Ex. LA-030; Ex. LA-031; Ex. LA-032); Mississippi's 50 percent arena cap ran to April 30 (Ex. MS-051; Ex. MS-053); the District's high-contact sports prohibition ran to May 21 (Ex. DC-080); Wyoming's continuations kept their conditions on colleges, universities and trade schools to May 31 (Ex. WY-053; Ex. WY-056; Ex. WY-058); Denver's higher-education order ran to April 23 (Ex. MET-DEN-015). The conditional-operation orders then ended with the States' general terminations, each of which is the date on which the restoration described in the interconnected-economy section could begin: Utah May 4 (Ex. UT-043), Rhode Island May 14 (Ex. RI-033), New Jersey May 28 (Ex. NJ-050), Virginia May 28 (Ex. VA-029), Massachusetts May 29 (Ex. MA-048), Pennsylvania May 31 and June 28 (Ex. PA-100), Illinois June 11 (Ex. IL-037), California June 15 (Ex. CA-029), Vermont June 15 (Ex. VT-044), Michigan June 22 (Ex. MI-076), New York June 25 (Ex. NY-049), Oregon June 30 (Ex. OR-043). The same quarter produced the instruments that governed the campuses for the rest of 2021: Idaho's EO 2021-04 (April 7) (Ex. ID-028); Arkansas's Acts 977 and 1002 (April 28) (Ex. AR-033; Ex. AR-031); Montana's HB 702 (May 7) (Ex. MT-072; Ex. SEC-27-014); North Dakota's HB 1465 (May 7) (Ex. ND-082); Iowa's HF 847 and HF 889 (May 20) (Ex. IA-046; Ex. IA-047); Georgia's EO 05.25.21.01 (May 25) (Ex. GA-036); Alabama's SB 267 (passed May 17, approved May 24, 2021) (Ex. AL-078); Oklahoma's SB 658 (May 28; effective July 1) and EO 2021-16 (Ex. OK-043; Ex. OK-042); Florida's SB 2006 (May 3; effective July 1) (Ex. FL-030); Texas's GA-35 (April 5), GA-36 (May 18) and SB 968 (June 16) (Ex. TX-030; Ex. TX-031; Ex. TX-032); Utah's HB 1007 (May 28) (Ex. UT-045); Tennessee's Public Chapter 550 (June 2) (Ex. TN-065); Arizona's EO 2021-15 (June 15) (Ex. AZ-043); South Carolina's Act 94 (June 30; effective July 1) (Ex. SC-045); Washington's Proclamation 20-12.3, signed June 30 for July 1 (Ex. WA-071); Cal/OSHA's readopted standard (June 17) (Ex. ECO-B-044). The federal layer: Proclamation 10199 (India) from May 4 (Ex. FED-208); the TSA directive extended May 12 (Ex. FED-051); the Healthcare Emergency Temporary Standard from June 21 (Ex. FED-080); the proclamations, testing order and conveyance order all quarter (Ex. FED-207; Ex. FED-042; Ex. FED-020). On June 30, 2021 Oregon's higher-education order was in force until 12:01 a.m. that day, Washington's new proclamation was signed for the next, Hawaii's quarantine and indoor face-covering orders ran on (Ex. HI-023; Ex. HI-031), Kansas's quarantine mandate ran on (Ex. KS-056), and the prohibitory statutes of eleven States and the executive orders of three were on the books.⁵¹

How they reached the functions

• IN: the conditional frameworks ran through their stepped terminations, Louisiana's campus face-covering rule ran to the end of the academic year, Utah's 75 percent in-person mandate governed the coming fall, and the first prohibitory statutes fixed what the fall term could require.
• HS: de-densification and isolation housing continued under the frameworks, and May commencements fell under the gathering caps still in force in New York, New Jersey, Virginia, Massachusetts, Pennsylvania, Oregon and Washington.
• AT: arenas were capped in Mississippi to April 30, high-contact sports were prohibited in the District to May 21, and Washington's spectator requirements applied.
• RS: the frameworks governed, and the Healthcare Emergency Temporary Standard reached clinical programs from June 21.
• AD: May commencements fell under caps, and entry from India was suspended from May 4.
• ST: health centers fell under the Healthcare Emergency Temporary Standard from June 21.
• CE: summer camps and conferences were planned under the frameworks in force in April and May.
• PY: the legislatures of eleven States and the governors of four prescribed campus policy.
• HR: the fall 2021 hiring season was conducted under the vaccination-proof prohibitions and, in Washington, the verification regime signed June 30.
• OP: Cal/OSHA's standard governed every campus office.
• WF: the K-12 orders governed through the end of the school year.
• CB: the Hawaii and Kansas quarantines and the vaccination-proof statutes on students governed the customer base.

The finding

During the calendar quarter beginning April 1, 2021 and ending June 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the conditional-operation orders through their terminations (Ex. OR-021; Ex. OR-043; Ex. WA-046; Ex. NY-112; Ex. NY-049; Ex. NJ-024; Ex. NJ-050; Ex. VA-016; Ex. VA-029; Ex. RI-033; Ex. UT-042; Ex. UT-043; Ex. LA-032; Ex. MS-051; Ex. DC-080), the 2021 statutes and executive orders prescribing campus policy (Ex. ID-028; Ex. AR-033; Ex. MT-072; Ex. ND-082; Ex. IA-047; Ex. GA-036; Ex. AL-078; Ex. OK-043; Ex. FL-030; Ex. TX-032; Ex. UT-045; Ex. UT-046; Ex. AZ-043; Ex. WA-071), the workplace standards (Ex. ECO-B-044; Ex. FED-080) and the federal entry, testing and conveyance orders (Ex. FED-208; Ex. FED-207; Ex. FED-042; Ex. FED-020; Ex. FED-051), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by keeping the campuses under capacity, distancing, testing and face-covering conditions into May and June, by prescribing the terms of the fall 2021 term while it was being planned and sold, and by suspending the entry of students and scholars.

The third quarter of 2021

The Service's premise about the quarter and what the statute asks

The Service's form sentence for this quarter is that its records indicate:

there were no government orders related to COVID-19 in effect during the quarter(s) you claimed ERC which could have fully or partially suspended your trade or business.

The statute asks a different question, and the only one the Code asks: whether, during the calendar quarter beginning July 1, 2021 and ending September 30, 2021, the operation of the trade or business was fully or partially suspended due to orders from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19.⁵² Congress re-enacted that test for this quarter on March 11, 2021 and left it in place when it terminated the following quarter on November 15, 2021; the Service's own Notice 2021-49 carried the suspension rules into this quarter on August 4, 2021.⁵³ The answer is the list that follows: orders from appropriate governmental authorities, in force between July 1 and September 30, 2021, prescribing who could enroll, teach and enter a campus and on what conditions, requiring the vaccination or weekly testing of the people on it, reimposing workplace infection-prevention and exposure-control requirements on every indoor space in a dozen States and every large metro, quarantining exposed students and staff, and, in the prohibitory States, dictating what the campus could and could not require of its own community, all beneath a federal layer that was tightening. For this quarter the Service's sentence does not describe a close call on a contested record. It describes a quarter that did not occur.

The instruments in force July 1 to September 30, 2021

The table states the principal campus-directed and general instruments of the quarter with their issue and effective dates, their operative terms and their status on the quarter's first and last day; the paragraphs that follow it state every layer in full.

The federal layer

The CDC's conveyance mask order, 86 Fed. Reg. 8025, issued January 29, 2021 and effective 11:59 p.m. February 1, 2021 "until further notice," required every person to wear a mask on every conveyance and at every transportation hub and required every conveyance operator to enforce it, on pain of criminal fines; it was in force on July 1 and September 30, 2021 and reached every campus shuttle, commuter bus, light-rail line and airport on which students and staff travelled (Ex. FED-020). The TSA's Security Directive SD 1582/84-21-01A, effective May 12, 2021 with an expiration date of September 13, 2021 and applied "including those already vaccinated," required every transit agency, railroad and bus operator to give notice of the federal requirement, to refuse boarding and to remove violators; SD 1582/84-21-01B, issued August 20, 2021, took effect September 14, 2021 and ran to January 18, 2022 (Ex. FED-051; Ex. FED-052). The CDC's pre-departure testing order, 86 Fed. Reg. 7387, prohibited the introduction of any aircraft passenger from any foreign country without a negative test or documentation of recovery, every day of the quarter (Ex. FED-042). Proclamations 9984 (China), 9992 (Iran), 10143 (the Schengen Area, the United Kingdom, Ireland, Brazil and South Africa) and 10199 (India) suspended the entry of noncitizens present in those places within fourteen days, "as immigrants or nonimmigrants," every day of the quarter and until November 8, 2021 (Ex. ECO-A-001; Ex. ECO-A-002; Ex. FED-207; Ex. FED-208); Proclamation 10043 suspended the entry of certain graduate students and researchers from the People's Republic of China every day of the quarter (Ex. AGY-FED-LABOR-IMMIGRATION-012). The Department of Homeland Security's land-border notifications prohibited non-essential travel from Canada and Mexico through July 21 (Ex. FED-232; Ex. FED-255), August 21 (Ex. FED-233; Ex. FED-256; Ex. ECO-A-036; Ex. ECO-A-056), September 21 (Ex. FED-234; Ex. FED-257) and October 21, 2021 (Ex. FED-235; Ex. FED-258). OSHA's COVID-19 Healthcare Emergency Temporary Standard, 29 C.F.R. § 1910.502, effective June 21, 2021 with compliance dates of July 6 and July 21, 2021, applied "to all settings where any employee provides healthcare services or healthcare support services," which is every campus health center, counseling center, clinical teaching program and athletic-training room, and required a written plan, entry screening, distancing, barriers, ventilation, daily employee screening and paid medical removal, every day of the quarter (Ex. FED-080). Executive Order 13991, M-21-15's remaining principles (until the Task Force superseded them on July 29, 2021) and M-21-25 governed every federal facility in which faculty and students worked (Ex. FED-060; Ex. FED-270; Ex. FED-271); the Safer Federal Workforce Task Force's revised principles of July 29, 2021 reinstated face coverings, an airborne-transmission control, for all persons in federal buildings in areas of substantial or high transmission, required attestations of vaccination status from employees and on-site contractors and vaccination-status information from visitors, and required agency-head approval for any federally hosted event of more than 50 participants (Ex. FED-272). The Department of Defense's travel restrictions of March 15, 2021 governed every ROTC program, military-affiliated student and installation visit "until further notice" (Ex. FED-280). The CDC's eviction moratorium protected covered tenants, students among them, through July 31, and its successor order from August 3 to August 26 (Ex. FED-025; Ex. FED-026). The public health emergency was renewed effective July 20, 2021 (Ex. FED-016), a predicate, not an order. Executive Orders 14042 and 14043 of September 9, 2021 and the contractor guidance and OMB determination of September 24 were issued in the quarter; the obligations they imposed on federal contractors, research universities among them, fell after it, and this analysis states them only as the federal government's own September 2021 statement that the emergency continued (Ex. FED-063; Ex. FED-064; Ex. FED-274; Ex. FED-275).⁵⁴

The State orders directed to campuses

In Washington, Proclamation 20-12.3, signed June 30, 2021 and effective July 1, 2021 "until rescinded or otherwise amended," provided that "IHEs that do not have fully vaccinated campuses are prohibited from providing" in-person instruction and activities unless they met its requirements, that "[t]he IHE must verify the vaccination status of all staff and faculty who do not wear face coverings" and "must verify the vaccination status of all students," enforced under RCW 43.06.220(5) as a gross misdemeanor (Ex. WA-071); Proclamation 20-12.4 amended it July 12 (Ex. WA-074); Proclamation 20-12.5 of August 27, 2021 fixed the fall regime: an institution without a fully vaccinated campus "must presume all persons on campus are unvaccinated until proof of vaccination is" obtained and must "obtain or observe documentary proof" of vaccination or a signed attestation from every student (Ex. WA-081). Proclamation 21-14.1 of August 20, 2021 prohibited "[a]ny Worker from engaging in work for the operator of an Educational Setting after October 18, 2021 if the Worker has not been fully vaccinated against COVID-19" and prohibited any operator "from permitting a Worker to engage in work ... after October 18, 2021" without proof, with higher education among the Educational Settings and no test-out; it was issued and binding on August 20, its verification and exemption duties ran from that day, and its deadline fell eighteen days after the quarter (Ex. WA-079). The Secretary of Health's Order 20-03.3 (June 30) governed face coverings, and Order 20-03.4, issued August 19 and effective August 23, 2021, reinstated indoor face coverings for every person regardless of vaccination status, airborne-transmission controls on every indoor space in the State (Ex. WA-070; Ex. WA-078). Proclamation 20-25.14 "Washington Ready" carried the K-12 and higher-education conditions from July 1 (Ex. WA-072), and the spectator-event requirements governed every stadium and arena, "professional, higher education and K-12," in the version of September 28, 2021 (Ex. WA-102). On July 1 and September 30, 2021 every Washington campus was under a governmental instrument that fixed the condition of in-person operation.

In Illinois, Executive Order 2021-20 of August 26, 2021, effective immediately, required from August 30 that "all individuals in Illinois who are age two or over and able to medically tolerate a face covering ... shall be required to cover their nose and mouth with a face covering when in an indoor public place," and in section 4, "Vaccination Requirements for Higher Education," required the personnel and students of every institution of higher education to have a first dose by September 19, 2021 or undergo weekly testing, with institutions required to exclude non-compliant persons; Executive Order 2021-22 of September 3 restated it with an express employer duty ("All employers must ensure that employees wear face coverings in indoor workplaces") and Executive Order 2021-23 of September 17 re-issued it through October 16 (Ex. IL-042; Ex. IL-043; Ex. IL-044); Executive Orders 2021-15 and 2021-18 carried the school and long-term-care measures (Ex. IL-039; Ex. IL-040). Enforcement: 20 ILCS 3305/7 and 19; facilities and schools "must exclude non-compliant workers from the premises."⁵⁵

In Nevada, Directive 047 of July 27, 2021, effective 12:01 a.m. July 30, reinstated indoor face coverings, an airborne-transmission control on every indoor public setting, in every county of substantial or high transmission, twelve of seventeen counties on July 30 and sixteen by August 24, reaching every campus (Ex. NV-041); Directive 048 of August 4 defined the county mechanics and the "indoor public setting" to include offices (Ex. NV-042); the State Board of Health's emergency regulation of August 20, 2021, amending NAC 441A.755 and endorsed by the Governor the same day, provided that "a person shall not enroll in courses at a university, community college, or state college on or after November 1, 2021, unless the person submits to the institution proof of a completed COVID-19 vaccination series," exempting only distance-education students; adopted inside the quarter, it required every public campus to build the verification, exemption and exclusion machinery for the spring enrollment that opened in the fall (Ex. NV-055; Ex. NV-070, context).

In Minnesota, HR/LR Policy #1446, issued August 11, 2021 and effective September 8, 2021, required that all staff of executive agencies and the "Minnesota State Colleges and Universities system" who work at the workplace "must provide proof of their COVID-19 vaccination status" and that those who do not "must undergo mandatory COVID-19 testing at least weekly," applying to "all employees, contractors, vendors, volunteers and interns" (Ex. MN-044; Ex. MN-045, context). The University of Minnesota's Face Covering Protocol of August 2, 2021 required face coverings, an airborne-transmission control, of "[a]ll University of Minnesota faculty, staff, students, and visitors (including contractors, service providers, vendors, and suppliers)" on every campus and property (Ex. MET-MSP-062).

In Virginia, Executive Directive Eighteen, issued August 5 and effective September 1, 2021, required that "[a]ll Executive Branch Employees and state contractors who enter the work place or who have public-facing work duties must disclose their vaccine status," that those not fully vaccinated "must undergo weekly COVID-19 testing," and that they "must cover their mouth and nose with a mask ... while indoors and conducting public business," the public colleges and universities and every contractor on their campuses included (Ex. VA-045). The Commonwealth's workplace standard, 16VAC25-220, remained in force on every employer in the State and was amended September 8, 2021 (Ex. VA-038) to refocus on unvaccinated employees while "removing ... public or private institutions of higher education reopening plans" from its text, an amendment that itself records that those plans had been part of the standard until that day.⁵⁶

In Louisiana, Proclamation 137 JBE 2021 of August 2, effective August 4, 2021, provided that "[a]ll individuals in the State of Louisiana shall be required to wear a face covering over the nose and mouth when indoors in any place outside of a private residence," campuses included, a workplace exposure-control requirement enforced by citation against the businesses and organizations that failed to require it; Proclamations 167 JBE 2021 (September 1) and 181 JBE 2021 (issued September 28, effective September 29) renewed it (Ex. LA-035; Ex. LA-036; Ex. LA-038; Ex. LA-040).

In Oregon, OAR 333-019-1025, filed August 11 and effective August 13, 2021, required that "[i]ndividuals, regardless of vaccination status, are required to wear a mask, face covering or face shield ... when in an indoor space," defined to include every public and private workplace, with the person responsible for the space required to ensure compliance by "employees, contractors, and volunteers," on pain of $500 per day (Ex. OR-048); Oregon OSHA's permanent rule, OAR 437-001-0744, bound every campus employer all quarter (Ex. ECO-B-048); OAR 333-019-1015 governed the schools (Ex. OR-045); Executive Order 21-29 of August 13 continued the emergency and its State-employee requirements (Ex. OR-047).

In New Mexico, the public health order of June 30, 2021 kept face coverings for the unvaccinated and mandatory COVID-safe practices from July 1 (Ex. NM-060), renewed July 30 (Ex. NM-062); Executive Order 2021-046 of July 30 required every State employee to vaccinate or test from August 2, reaching every State agency with which a campus dealt (Ex. NM-063); the public health order of August 17, 2021 reinstated indoor face coverings statewide as an airborne-transmission control and required school workers to vaccinate or test weekly and hospital and congregate-care workers to vaccinate (Ex. NM-068); the Supreme Court's orders of August 9 and 16 governed the courts (Ex. NM-064; Ex. NM-066).

In New York, 10 NYCRR 2.61, filed and effective August 26, 2021, required the vaccination of every worker of a covered health-care entity with first doses by September 27 (Ex. NY-071); 10 NYCRR 2.60 and the Commissioner's Determination on Indoor Masking of August 27 required face coverings, an airborne-transmission control imposed beside the school quarantine and exclusion rules, in every school (Ex. NY-073); Subpart 66-3's face-covering rule, the State's airborne-transmission control for unvaccinated persons indoors, ran to August 27 (Ex. NY-133). The City University of New York's fall 2021 guidance, published August 25-26, required every student in an in-person or hybrid class to be vaccinated, with proof due September 27 and verification by October 7 upon the FDA approval of August 23, and required everyone to "[w]ear a mask inside all CUNY campuses and buildings, including while in class" (Ex. SEC-27-011). New York City's Key to NYC, Emergency Executive Order No. 225 of August 16, effective August 17 and enforced from September 13, restated by Emergency Executive Order No. 228 of August 25, required proof of vaccination for the dining rooms, gyms and venues of every campus neighborhood (Ex. MET-NYC-017; Ex. MET-NYC-018).

The rest of the Northeast kept binding instruments on the campuses and their counterparties all quarter. The school face-covering orders named in this paragraph and the two that follow are workplace infection-prevention and exposure-control requirements imposed, beside quarantine and exclusion rules, on the K-12 buildings in which this industry's education students taught and its dual-enrollment students sat. Connecticut renewed its emergency July 13 and September 27, issued Executive Order 13 on July 19 and 13A on August 5 (face coverings for the unvaccinated indoors; municipal universal face-covering orders enforceable; issuance by "campus safety" officers), required the vaccination of long-term-care workers by Executive Orders 13B and 13F, and required the vaccination or weekly testing of State employees and school and child-care workers from September 27 by Executive Orders 13D and 13G (Ex. CT-049; Ex. CT-050; Ex. CT-051; Ex. CT-055; Ex. CT-054; Ex. CT-056; Ex. CT-057). New Jersey kept its State of Emergency, a predicate, not an order, all quarter (Ex. NJ-052; Ex. NJ-053), required face coverings in every school from August 9 (Ex. NJ-055) and vaccination or testing of every school worker from August 23 with a compliance date of October 18 (Ex. NJ-057). Pennsylvania's Act 21 extended the regulatory suspensions to September 30, 2021 (Ex. PA-040); the Acting Secretary of Health ordered face coverings in every school entity from September 7 (Ex. PA-042); the Commonwealth announced on August 10, 2021 that its employees in State health-care and congregate-care facilities would vaccinate or test weekly from September 7; and the Philadelphia Board of Health's regulation, adopted August 12 and effective August 16, 2021, mandated vaccination "in Higher Education" and required each Higher Education Institution to "maintain documentation of the vaccination status of each affiliated Covered Individual," with an employment bar from October 15 (Ex. MET-PHL-020; Ex. MET-PHL-021; Ex. MET-PHL-095, context). Rhode Island terminated its reopening orders July 6 (Ex. RI-047), extended its quarantine orders (Ex. RI-052), declared a new variant emergency and required face coverings in schools on August 19 (Ex. RI-054; Ex. RI-055). Vermont's Executive Order 06-21 governed its post-emergency recovery all quarter (Ex. VT-044) and its Agency of Education confirmed school boards' face-covering authority by memorandum of August 18, cited as context (Ex. VT-072). Maine's Executive Order 40 scheduled the transition to September 30 and December 31 (Ex. ME-060) and its health-care worker vaccination rule took effect August 12 (Ex. ME-061). Delaware declared a public health emergency July 12 and ordered face coverings in every school and child-care center from August 16 (Ex. DE-041; Ex. DE-044; Ex. DE-045). Maryland's Department of Health ordered the vaccination or testing of the staff of State congregate facilities, hospitals and nursing homes by September 1 (Ex. MD-057; Ex. MD-058; Ex. MD-060). The District reinstated indoor face coverings, an airborne-transmission control, July 31 (Ex. DC-057) and announced vaccination requirements for District employees, health-care workers and school and child-care personnel with compliance dates from September 19 (Ex. DC-076).

The South and the Midwest issued and kept instruments of the same kinds. Kentucky ordered face coverings in every school and child-care center August 10 and 12 and the General Assembly re-ordered the school year September 9 (Ex. KY-052; Ex. KY-053; Ex. KY-054; Ex. KY-057; Ex. KY-049), and Senate Bill 1's thirty-day limit on orders restricting postsecondary institutions became operative when the Supreme Court of Kentucky dissolved the injunction against it on August 21 (Ex. KY-041; Ex. KY-055). Tennessee declared a health-care emergency August 6 and regulated school face coverings August 16 (Ex. TN-035; Ex. TN-036), with Public Chapter 550 barring governmental proof-of-vaccination requirements all quarter (Ex. TN-065). North Carolina kept face coverings in schools and other settings to July 30 and required its Cabinet agencies to vaccinate or test from September 1 (Ex. NC-030; Ex. NC-031; Ex. NC-032). Georgia's EO 05.25.21.01 barred every State agency, the University System included, from requiring proof of vaccination, and EO 08.19.21.03 suspended enforcement of local ordinances against private organizations (Ex. GA-036; Ex. GA-043). Alabama's SB 267 barred governmental immunization requirements and Birmingham's schools required face coverings from August 2 (Ex. AL-078; Ex. AL-084). Arkansas's Act 977 barred State-mandated vaccination "as a condition of education, employment, entry, or services from the state," Act 1030 barred vaccine passports from July 28, and Act 1002's face-covering prohibition ran from July 28 until enjoined August 6, the injunction sustained September 30 (Ex. AR-033; Ex. AR-034; Ex. AR-031; Ex. AR-081). Mississippi's emergency continued (Ex. MS-053). South Carolina's Proviso 117.190, effective July 1, 2021, provided that a public institution of higher learning "may not use any funds appropriated ... to require that its students have received the COVID-19 vaccination in order to be present at the institution's facilities without being required to wear a facemask"; on August 17 the Supreme Court of South Carolina held that it "does not prohibit a universal mask mandate," reciting the University of South Carolina's face-covering requirement of July 30, its withdrawal August 3 and its reinstatement, and on September 2 and 30 the court construed Proviso 1.108 (Ex. SC-045; Ex. SC-040; Ex. SC-041; Ex. SC-042). Indiana's Executive Orders 21-17, 21-19 and 21-24 carried the control measures of 410 IAC 1, which bound "post-secondary facilities" to report every case and required infected and exposed persons to isolate or quarantine "including exclusion from schools, preschools, daycare settings, employment, and public places" for ten to fourteen days, with a vaccination-conditioned exemption, every day of the quarter (Ex. IN-066; Ex. IN-068; Ex. IN-071; Ex. IN-092); Monroe County reimposed indoor face coverings, an airborne-transmission control, August 5 (Ex. IN-093); and Indiana University's mandate, under which "all students at Indiana University must be vaccinated against COVID-19 unless they are exempt for religious or medical reasons" and exempt students "must wear masks and be tested for the disease twice a week," was left undisturbed by the Seventh Circuit on August 2 (Ex. IN-094). Kansas's quarantine mandate on travel and exposure was in force in its June 3 and September 23 versions (Ex. KS-056; Ex. KS-057), its testing order for adult care homes bound clinical sites (Ex. KS-052), Douglas County ordered indoor face coverings, an airborne-transmission control, August 18 (Ex. KS-095), and Kansas State University required face coverings, an airborne-transmission control, on every campus (Ex. KS-096). Iowa's HF 889 barred proof-of-vaccination requirements by governmental entities, HF 847 was enjoined as to schools September 13, the Governor's July 23 proclamation continued the community-college teaching-load relief, and Iowa City's mayor ordered face coverings in "University of Iowa academic buildings and business offices" from August 19 (Ex. IA-047; Ex. IA-046; Ex. IA-057; Ex. IA-039; Ex. IA-067). Nebraska's Lincoln-Lancaster County directed health measure of August 24, 2021 reimposed indoor face coverings, an airborne-transmission control, on the University of Nebraska-Lincoln from August 26 and was extended September 28 (Ex. NE-080; Ex. NE-081). North Dakota's HB 1465 barred State entities from requiring vaccination documentation with a University System carve-out, HB 1323 took effect August 1, and North Dakota State University required face coverings, an airborne-transmission control, in every classroom from August 23 (Ex. ND-082; Ex. ND-080; Ex. ND-083). Ohio's Am. H.B. 244, signed July 14, 2021, barred State institutions of higher education from requiring vaccines without full FDA approval effective October 13, 2021; it was enacted inside the quarter and governed the fall planning of every public campus in the State, and this analysis states its enactment and its terms, not an obligation before October 13 (Ex. OH-064; Ex. SEC-27-015). Michigan's Ottawa County ordered isolation and quarantine in educational settings from August 6 (Ex. MI-081). Missouri's RSMo 67.265 governed local orders and its staffing emergency issued August 27 (Ex. MO-021; Ex. MO-020). Wisconsin's Supreme Court order of May 21 governed the courts (Ex. WI-029). West Virginia's EO 10-21 governed colleges all quarter (Ex. WV-062; Ex. WV-063). South Dakota's Governor's vaccine-passport prohibition stood, and the Brookings City Council's Resolution 21-072 of August 24, 2021, a resolution of recommendations stated as context, stood beside it (Ex. SD-030; Ex. SD-082).

The West and the Southwest did the same. California's Cal/OSHA COVID-19 Prevention Emergency Temporary Standards, readopted June 17, 2021, required every campus employer to maintain a written prevention program, to exclude cases and unvaccinated close contacts with pay and to provide testing at no cost, every day of the quarter (Ex. ECO-B-044); the State Public Health Officer required vaccination of health-care workers by September 30 (Ex. CA-030), vaccine verification of school workers from August 12 (Ex. CA-033), face coverings in every K-12 school from July 12 (Ex. CA-034) and vaccination or testing of State employees from August 2 (Ex. CA-039); the University of California's policy of July 15, 2021 made vaccination "a condition of Physical Presence at any University Location or Program" and required every location to begin collecting proof "no later than July 15, 2021" (Ex. SEC-27-001); the California State University announced its requirement July 27 (Ex. AGY-ST-EDUCATION-HIGHER-ED-035); Los Angeles County reinstated universal indoor face coverings, an airborne-transmission control, July 17, the Bay Area's eight health officers August 3 (with San Francisco's vaccination-proof order for indoor dining, bars and gyms from August 20) and Sacramento County July 30, and Long Beach's quarantine order of September 15 required contacts "in ... dormitories" to quarantine fourteen days (Ex. MET-LA-018; Ex. MET-SFO-071; Ex. MET-SFO-010; Ex. MET-SFO-011; Ex. MET-SAC-015; Ex. MET-LA-068). Colorado's Public Health Order 20-38 in its Fourth and Fifth Amended forms kept employer duties in force (Ex. CO-041; Ex. CO-053); Denver's order of August 2, 2021 required the personnel of "schools, including post-secondary and higher education" to be fully vaccinated by September 30, 2021 and every such entity to ensure it, with unascertained persons treated as unvaccinated (Ex. MET-DEN-023); Boulder County required face coverings, an airborne-transmission control, in every indoor public space from September 3 (Ex. MET-DEN-033). Utah's H.B. 1007 forbade any institution of higher education to require a face covering anywhere on campus, S.B. 107 required 75 percent in-person courses, the courts reinstated their face-covering orders, an airborne-transmission control, July 30 and September 17, and Summit County ordered school face coverings (Ex. UT-045; Ex. UT-046; Ex. UT-051; Ex. UT-053; Ex. MET-SLC-016). Arizona's EO 2021-15 barred the Board of Regents, the universities and the community colleges from conditioning attendance on vaccination, testing or face coverings until its rescission September 29, and EO 2021-18 of August 16 barred governmental vaccine requirements (Ex. AZ-043; Ex. AZ-045). Idaho's EO 2021-04 barred proof-of-vaccination conditions at State entities, its Stage 4 guidelines required face coverings of anyone entering a long-term-care campus, the Boise School District reinstated face coverings, an airborne-transmission control, August 3 and the courts imposed face-covering and distancing requirements, an airborne-transmission control, August 9 (Ex. ID-028; Ex. ID-013; Ex. ID-079; Ex. ID-084). Montana's HB 702 made vaccination status a protected class binding every employer and educational institution in the State, its health department construed the statute in a letter of July 28, cited as context, and adopted an emergency school rule August 31 (Ex. MT-072; Ex. SEC-27-014; Ex. MT-071, context; Ex. MT-042). Wyoming's HEA 93 governed public health orders from July 1 (Ex. WY-055), its emergency, a predicate, not an order, ran all quarter (Ex. WY-001), the University of Wyoming required indoor face coverings and entry testing of every employee and student from August 16 and extended the requirement indefinitely September 17 (Ex. WY-060; Ex. WY-061), and the Teton District Health Officer's Public Health Order #21-5 of August 26, 2021 required face coverings, an airborne-transmission control, at "postsecondary institutions" from that date. Hawaii's Safe Travels regime conditioned every trans-Pacific arrival on a test, a quarantine or, from July 8, vaccination (Ex. HI-031; Ex. HI-023); the emergency proclamation of August 5 required State and county employees to attest and test (Ex. HI-024); Executive Order 21-05 of August 10 capped social gatherings and restaurants, bars and gyms (Ex. HI-025); Executive Order 21-07 of September 13 conditioned access to State property on vaccination or a negative test (Ex. HI-027); the statewide indoor face-covering requirement, an airborne-transmission control first imposed by the Fifteenth Proclamation of November 16, 2020 (Ex. HI-016) and carried without interruption into the Twenty-First Proclamation of June 7, 2021 (Ex. HI-023) and the Emergency Proclamation of August 5, 2021 (Ex. HI-024), the instruments in force in the quarter, never lifted; Honolulu's Safe Access Oahu, established by Emergency Order No. 2021-11 of August 30, took effect September 13 and was continued by Emergency Order No. 2021-13 of September 17, effective September 22 (Ex. MET-HNL-035; Ex. MET-HNL-037). Texas's GA-38 of July 29 kept the daily testing-report and hospital-reporting mandates and the vaccination-proof prohibitions in force while forbidding governmental face-covering requirements and stating that institutions of higher education were "encouraged" to follow TEA standards; GA-39 of August 25 barred every governmental entity, public universities included, from requiring vaccination or vaccination documentation; SB 968 barred vaccine passports; the Supreme Court of Texas stayed the Dallas and Bexar County orders August 15; Dallas County's orders of August 12 and 16 imposed a health and safety policy on "Public Institutions of Higher Education" with fines to $1,000; Austin's and Travis County's orders of August 11 to 24 added "public colleges" to the school face-covering requirement and remained in force through September 30; Bexar County's directive of August 10 governed the schools; and TEA's guidance of September 2 required school systems to exclude infected students (Ex. TX-036; Ex. TX-037; Ex. TX-032; Ex. TX-044; Ex. TX-045; Ex. MET-DFW-030; Ex. MET-DFW-031; Ex. MET-AUS-025; Ex. MET-AUS-030; Ex. MET-AUS-031; Ex. MET-AUS-032; Ex. MET-AUS-050; Ex. MET-AUS-051; Ex. MET-AUS-053; Ex. MET-AUS-054; Ex. MET-SAT-066; Ex. TX-053). Florida's section 381.00316 forbade every educational institution to require vaccination documentation of students from July 1 on pain of $5,000 per violation, and EO 21-175 of July 30 barred school face-covering mandates without parental opt-out (Ex. FL-030; Ex. FL-063). Oklahoma's SB 658 barred public institutions of higher education from requiring vaccination or, absent an emergency, face coverings for unvaccinated students from July 1, enjoined in part September 1; EO 2021-16 governed State buildings; Stillwater's advisory resolution of August 2 recited the CDC guidance, cited as context (Ex. OK-043; Ex. OK-042; Ex. OK-088, context). New Hampshire's RSA 141-C:1-a of July 23 barred immunization conditions on access to public facilities (Ex. NH-068).⁵⁷

The metros

Every large metro reimposed an indoor face-covering order (a workplace infection-prevention and exposure-control requirement on every indoor space), a vaccination-proof order or a capacity order between July 1 and September 30, 2021: Philadelphia (Ex. MET-PHL-020; Ex. MET-PHL-021; Ex. MET-PHL-095, context), Denver and Boulder (Ex. MET-DEN-023; Ex. MET-DEN-033), Dallas (Ex. MET-DFW-030; Ex. MET-DFW-031), Austin and Travis County (Ex. MET-AUS-025; Ex. MET-AUS-051; Ex. MET-AUS-053; Ex. MET-AUS-054), San Antonio and Bexar County (Ex. MET-SAT-066), Boston (Ex. MET-BOS-013; Ex. MET-BOS-019, context), Minneapolis (Ex. MET-MSP-062), Los Angeles and Long Beach (Ex. MET-LA-018; Ex. MET-LA-068), the Bay Area and San Francisco (Ex. MET-SFO-071; Ex. MET-SFO-010; Ex. MET-SFO-011), New York City (Ex. MET-NYC-017; Ex. MET-NYC-018), Chicago (Ex. MET-CHI-026; Ex. MET-CHI-032, context), St. Louis (Ex. MET-STL-021), Kansas City and Johnson County (Ex. MET-KC-002; Ex. MET-KC-067), Dane County (Ex. MET-MKE-023), New Orleans (Ex. MET-MSY-027), Baltimore (Ex. MET-BAL-017), Charlotte and Mecklenburg (Ex. MET-CLT-023), Multnomah County (Ex. MET-PDX-014), Sacramento County (Ex. MET-SAC-015), Clark County, Nevada (Ex. MET-LAS-006), King County (Ex. MET-SEA-002), Montgomery and Prince George's Counties (Ex. MET-DCM-023), Columbus (Ex. MET-CMH-048), Oakland County, Michigan (Ex. MET-DET-013), Honolulu (Ex. MET-HNL-035; Ex. MET-HNL-037), Summit County, Utah (Ex. MET-SLC-016). Each is an order of an appropriate governmental authority in force in the quarter that bound every campus, campus contractor and campus neighborhood within it.

The sector and counterparty instruments

In Massachusetts, Executive Order No. 595 of August 19, 2021 required every executive-department employee of the Commonwealth to demonstrate vaccination by October 17, 2021 as "a condition of continuing employment," and its section 3 encouraged "higher education" to adopt consistent policies (Ex. MA-068); it bound the Commonwealth's own workforce and the State agencies with which every Massachusetts campus dealt, and it named higher education as the sector the Commonwealth expected to follow. Public Health Emergency Orders 2021-1 and 2021-4, 101 CMR 23.00 and 105 CMR 159.000 governed the health and human-service settings in which the Commonwealth's clinical students trained (Ex. MA-054; Ex. MA-067; Ex. MA-070; Ex. MA-069), and the DESE face-covering requirement of August 25 governed every school in which its education students taught (Ex. MA-071).

The State university systems acted as instrumentalities of their States: the University of California (Ex. SEC-27-001), the California State University (Ex. AGY-ST-EDUCATION-HIGHER-ED-035), the City University of New York (Ex. SEC-27-011), Indiana University (Ex. IN-094), Kansas State University (Ex. KS-096), North Dakota State University (Ex. ND-083), the University of Minnesota (Ex. MET-MSP-062) and the University of Wyoming (Ex. WY-060; Ex. WY-061). The counterparties were under their own orders: the hospitals and clinics that host clinical placements under the Healthcare Emergency Temporary Standard and the health-care worker vaccination orders of California, New York, New Jersey, Connecticut, Maine, Maryland, Massachusetts, New Mexico and Oregon (Ex. FED-080; Ex. CA-030; Ex. NY-071; Ex. CT-051; Ex. CT-055; Ex. ME-061; Ex. MD-058; Ex. MA-067; Ex. NM-068; Ex. OR-046; Ex. OR-051); the K-12 schools that host student teachers and dual enrollment under the school face-covering and quarantine orders of at least eighteen States and the District (Ex. NJ-055; Ex. IL-040; Ex. KY-052; Ex. PA-042; Ex. NY-073; Ex. RI-055; Ex. DE-044; Ex. OR-045; Ex. NV-042; Ex. CA-034; Ex. LA-036; Ex. MA-071; Ex. TX-053); the transit agencies under the conveyance order (Ex. FED-020); the college-town businesses under the metro orders above; the courts under their emergency orders (Ex. NM-064; Ex. NM-066; Ex. UT-051; Ex. UT-053; Ex. SD-084; Ex. WI-029; Ex. ID-084).

The workforce instruments

The quarantine and isolation orders of Indiana and Kansas excluded exposed and infected employees from "employment, and public places" for ten to fourteen days per exposure, with an exemption conditioned on vaccination (Ex. IN-092; Ex. KS-056; Ex. KS-057); the vaccination-or-testing conditions on campus employment of Washington, Illinois, Minnesota (the Minnesota State system), Virginia, Philadelphia and Denver made every unvaccinated campus employee a weekly-tested or excluded one (Ex. WA-079; Ex. IL-042; Ex. MN-044; Ex. VA-045; Ex. MET-PHL-021; Ex. MET-DEN-023), and the parallel conditions on State employees in New Mexico and Connecticut, on long-term-care workers in Connecticut and on preschool-through-grade-12 school workers in New Jersey reached the agencies, clinical sites and school districts with which every campus dealt (Ex. NM-063; Ex. CT-054; Ex. CT-056; Ex. CT-055; Ex. NJ-057); the school face-covering and quarantine orders of 2021-22 sent the children of faculty and staff home by the class; and the federal conveyance order governed every commute (Ex. FED-020).

How they reached the functions

• IN: the condition of in-person instruction was fixed by governmental order in Washington (verification of every student's vaccination status; presumption of unvaccinated status), Illinois (vaccination or weekly testing of every student and employee; face coverings in every indoor public place, with an employer duty to enforce), Nevada (vaccination as a condition of enrollment from the spring; indoor face coverings in counties of substantial transmission), Louisiana, Oregon, New Mexico, Hawaii and the District (face coverings in every indoor space, workplace exposure-control requirements enforced against the operator of the space), Utah (75 percent in-person courses; no campus face-covering requirement), Arizona, Florida, Texas, Oklahoma, Montana, Georgia, Alabama, Arkansas, Iowa, Idaho, North Dakota, South Carolina, New Hampshire and Tennessee (what the campus could not require, as those statutes' terms reach public institutions), and by the instrumentalities' own rules in California, New York, Indiana, Kansas, North Dakota, Minnesota and Wyoming.
• HS: enrollment and residence were conditioned on vaccination in Nevada, at the University of California, at CUNY and at Indiana University, dormitory contacts were quarantined fourteen days in Long Beach (Ex. MET-LA-068), and residence-hall staff were under the vaccination-or-testing orders.
• AT: Washington's spectator requirements, Hawaii's gathering caps, Key to NYC on the venues, Utah's bar on face-covering requirements at "institution-sponsored athletics" and face coverings, as airborne-transmission controls, at every indoor event in the face-covering States governed the function.
• RS: the Healthcare Emergency Temporary Standard reached every clinical program and campus clinic, the hospital vaccination orders reached every clinical placement, and the federal contractor statements of September 9 and 24 reached every research university.
• AD: entry was suspended from China, Iran, Europe, the United Kingdom, Ireland, Brazil, South Africa and India every day, inbound testing was required, Proclamation 10043 governed Chinese graduate students, fall orientation and move-in ran under the Delta-wave face-covering and exposure-control orders, and the vaccination conditions on enrollment governed admission.
• ST: health and counseling centers were under the Healthcare Emergency Temporary Standard, testing centers were required by the vaccination-or-testing orders, and libraries and recreation centers were under the indoor face-covering and exposure-control orders.
• CE: contract training ran for employers themselves under vaccination-or-testing orders, dual enrollment ran under the K-12 face-covering and quarantine orders, and conferences ran under Hawaii's caps and the federal 50-participant rule.
• PY: the Boards of Health of Nevada and Philadelphia, the Governors of Washington, Illinois and Virginia, the Governor of Massachusetts by an order on the Commonwealth's workforce that addressed higher education by name, the legislatures and governors of fifteen States and the courts of Texas, South Carolina, Arkansas, Iowa and Oklahoma decided campus policy.
• HR: vaccination status was a condition of employment on campus in six jurisdictions, and H-1B and J-1 hiring ran under the consular posture and the entry proclamations.
• OP: face-covering and exposure-control requirements governed every campus office in the face-covering States and under Cal/OSHA's standard, and the Task Force rules governed every federal facility.
• WF: the quarantine and isolation orders, weekly testing, the school face-covering and quarantine orders on the children of employees and the conveyance order on every commute governed the workforce.
• CB: every international student was under the proclamations and the testing order, every Hawaii student under Safe Travels, every unvaccinated student under the enrollment conditions, and every student in Texas, Florida, Arizona and Utah under a statute forbidding the institution to condition attendance.

The continuing-suspension analysis

An employer whose operation was suspended by orders in force on June 30, 2021 was not operating normally on July 1, 2021, and four lawful pathways, each grounded in text, establish it. First, the clause's grammar: "during the calendar quarter" modifies "suspended," not "orders"; Congress did not write "orders in effect during the quarter"; the suspension an order caused continues, because of that order, for the period its compelled dismantling took to reverse; Tri-State defines suspension to include "delay," and "due to" is but-for; the Notice's own Q&A-22 makes an employer suspended for part of a quarter eligible for the whole quarter and Q&A-16's transition-period language recognizes that a suspension persists after the order operates.⁵⁸ Second, the orders actually in force on every day of the quarter, listed in the inventory of instruments in force: the federal general layer, the continuing State emergencies of at least 35 jurisdictions on July 2 and 25 on September 21, 2021 (Ex. LAW-246; Ex. LAW-247), the Delta-wave face-covering, vaccination and capacity orders of the States and metros, the school face-covering and quarantine orders of the 2021-22 year, the quarantine and isolation orders on exposed persons, the health-care-worker and public-employee mandates, the campus instruments of Washington, Illinois, Nevada, Minnesota, Virginia, Philadelphia and Denver, Massachusetts's executive-department vaccination order, the prohibitory statutes and the instrumentalities' own rules. Third, the counterparty orders in force in the quarter: the Healthcare Emergency Temporary Standard on every clinical site, the school orders on every K-12 placement, the conveyance order on every commute, the metro orders on every college-town business. Fourth, the arithmetic of the restoration period, stated from the orders' own terms. Washington prohibited in-person classes on March 13, 2020, permitted them from August 1, 2020 only under conditions, tightened the conditions October 20, 2020, and replaced them July 1, 2021 with a vaccination-verification condition that ran through the quarter: the Washington campus was never released (Ex. WA-008; Ex. WA-038; Ex. WA-046; Ex. WA-071). Oregon prohibited in-person instruction from March 21 to June 13, 2020 and subjected it to minimum standards from June 14, 2020 until 12:01 a.m. on June 30, 2021, the last day of the second quarter; the restoration of an Oregon campus to unconditioned operation began on the last day of the quarter before this one and was interrupted on August 13, 2021 by the statewide indoor face-covering rule, a workplace exposure-control requirement (Ex. OR-059; Ex. OR-021; Ex. OR-043; Ex. OR-048). New Jersey ordered in-person instruction to cease March 18, 2020, permitted laboratories from July 1 and the rest from August 13, 2020 under the Secretary's standards, and lifted the campus distancing requirements on May 28, 2021, fourteen months and ten days after the cessation; the fall 2021 term was planned, priced, staffed and sold in the spring of 2021 under the standards then in force, and no institution restaffs a dining hall, refills a residence hall or rebuilds a laboratory schedule in the thirty-three days between May 28 and July 1 (Ex. NJ-002; Ex. NJ-024; Ex. NJ-032; Ex. NJ-050). New York reduced every non-essential in-person workforce to zero on March 22, 2020, admitted higher education to Phase Four under mandatory guidance on June 26, 2020, and ended the guidance June 25, 2021, six days before the quarter (Ex. NY-002; Ex. NY-031; Ex. NY-112; Ex. NY-049). Utah ordered weekly testing of every residential and in-person student from January 1, 2021, ended it May 4, 2021, and by statute of March 24, 2021 ordered the institutions to restore at least 75 percent of their in-person courses for a fall term that had not begun when the quarter opened (Ex. UT-029; Ex. UT-043; Ex. UT-046). Michigan sent its colleges to remote instruction November 18 to December 20, 2020 and ended its orders June 22, 2021 (Ex. MI-060; Ex. MI-076). The academic calendar makes the arithmetic plain: the fall 2021 term, the first that any campus outside Washington could hold without a conditional-operation order, began in the third and fourth weeks of August 2021 under the Delta-wave orders; the hiring, housing contracts, dining contracts, room assignments, course schedules and international admissions for that term had been fixed between March and June 2021 under the orders then in force; enrollment, which the orders had reduced by 2.5 percent in fall 2020, fell a further 2.7 percent in fall 2021 (Ex. SEC-15-007; Ex. SEC-27-023). An employer whose operation was ordered suspended through June 30 was not walking normally on July 1, and this industry's orders did not end June 30. This analysis never says an expired order suspended anyone by its own force; it says the suspension the orders caused continued because of them, and it has listed the orders that were in force.

The answers to the Service's grounds for the quarter

To the ground that no orders were in effect: the inventory above lists them, by issuer, date, clause, enforcement and status, and the Service's sentence cannot be squared with the Federal Register, the Illinois Register, the Washington Governor's proclamations, the Nevada Administrative Code, the Louisiana proclamations, the Oregon Administrative Rules or the ordinances of every large metro. To the ground that the orders had lifted before the quarter: the conditional-operation orders of Oregon and Washington ran to June 30 and July 1 respectively, Washington's never lifted, and the list of instruments issued inside the quarter runs from Proclamation 20-12.3 on July 1 to Proclamation 181 JBE 2021 (issued September 28, effective September 29). To the ground that the instruments were guidance: an Illinois executive order enforceable under 20 ILCS 3305, a Nevada Board of Health regulation enforced by exclusion from enrollment, a Washington proclamation enforced as a gross misdemeanor, an Oregon rule enforced at $500 per day, a Louisiana proclamation enforced by citation, a Philadelphia regulation enforced by cease-operations orders and $2,000 fines, a Dallas County order enforced at $1,000 per violation and a Florida statute enforced at $5,000 per violation are not recommendations (Ex. IL-042; Ex. NV-055; Ex. WA-071; Ex. OR-048; Ex. LA-036; Ex. MET-PHL-021; Ex. MET-DFW-030; Ex. FL-030). To the ground that the measures were voluntary: an institution that verified the vaccination status of every student because Washington ordered it, tested every unvaccinated employee weekly because Illinois or Minnesota ordered it, or declined to require a face covering because Utah or Arizona forbade it, acted under compulsion in each direction. To the ground that the effect was nominal: the condition of in-person operation at every campus in Washington, the enrollment of every student in Nevada, the employment of every worker in six jurisdictions and the mode of every class in the face-covering States are not nominal portions of a college's operation, and the ten percent figure is, by the United States' own account, a safe harbor that this showing exceeds many times over.⁵⁹

The finding

During the calendar quarter beginning July 1, 2021 and ending September 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the federal conveyance, entry, testing, border and workplace orders (Ex. FED-020; Ex. FED-051; Ex. FED-052; Ex. FED-042; Ex. FED-207; Ex. FED-208; Ex. FED-232; Ex. FED-233; Ex. FED-080; Ex. FED-272), the campus orders of Washington, Illinois, Nevada, Minnesota and Virginia (Ex. WA-071; Ex. WA-074; Ex. WA-081; Ex. WA-079; Ex. IL-042; Ex. IL-043; Ex. NV-041; Ex. NV-055; Ex. MN-044; Ex. VA-045) and Massachusetts's Executive Order 595 on the Commonwealth's executive-department workforce, which addressed higher education by name (Ex. MA-068), the statewide indoor face-covering orders of Louisiana, Oregon, New Mexico, Hawaii and the District, workplace infection-prevention and exposure-control requirements enforced against the operator of every indoor space (Ex. LA-036; Ex. LA-038; Ex. OR-048; Ex. NM-068; Ex. HI-023; Ex. HI-024; Ex. DC-057), the metro orders (Ex. MET-PHL-021; Ex. MET-DEN-023; Ex. MET-DFW-030; Ex. MET-AUS-051; Ex. MET-BOS-013; Ex. MET-LA-018; Ex. MET-SFO-071; Ex. MET-NYC-017; Ex. MET-NYC-018), the instrumentalities' rules (Ex. SEC-27-001; Ex. SEC-27-011; Ex. IN-094; Ex. KS-096; Ex. ND-083; Ex. WY-060), the quarantine and isolation orders (Ex. IN-092; Ex. KS-056; Ex. KS-057), the counterparty orders on hospitals and schools (Ex. FED-080; Ex. NY-071; Ex. NJ-055; Ex. KY-052; Ex. PA-042) and the prohibitory instruments of fifteen States with the litigation decided inside the quarter (Ex. TX-036; Ex. TX-037; Ex. TX-044; Ex. FL-030; Ex. AZ-043; Ex. UT-045; Ex. MT-072; Ex. GA-036; Ex. AL-078; Ex. AR-033; Ex. AR-081; Ex. IA-047; Ex. IA-057; Ex. ID-028; Ex. OK-043; Ex. ND-082; Ex. SC-045; Ex. SC-040; Ex. NH-068; Ex. TN-065), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by fixing the conditions on which any person could enroll, teach, work or enter a campus, by requiring the vaccination or weekly testing of the campus workforce, by reimposing exposure controls on every indoor space in a dozen States and every large metro, by excluding exposed students and staff, by suspending the entry of students and scholars from abroad, by governing every commute and every clinical placement, and, in the prohibitory States, by dictating the terms of campus operation from the statehouse.

What this analysis does not claim was in force

The proof for this quarter rests on none of the following, each of which had ended before July 1, 2021 or took effect after September 30, 2021, and each of which is named so that the proof rests visibly on none of them: the March 2020 prohibitions on in-person instruction (Ex. WA-008; Ex. OR-059; Ex. OR-060; Ex. NJ-002; Ex. VA-006; Ex. VA-010; Ex. GA-003; Ex. GA-008; Ex. GA-009; Ex. AL-005; Ex. SC-002; Ex. SC-024; Ex. LA-004; Ex. MN-019; Ex. CO-019; Ex. WY-004 and its continuations to May 31, 2021); the stay-at-home orders of 2020 (Ex. IL-005; Ex. OH-011; Ex. MI-011; Ex. NY-002; Ex. PA-006; Ex. MA-008; Ex. CT-007; Ex. DC-006; Ex. CA-002); the county college closures of 2020 (Ex. MET-RIV-004; Ex. MET-SAN-002; Ex. MET-MIA-003); the 2020-21 conditional-operation orders (Ex. NY-031; Ex. NY-050; Ex. NY-112, ended June 25, 2021; Ex. WA-038 and Ex. WA-046, superseded by Proclamation 20-12.3 on July 1, 2021; Ex. OR-021, rescinded 12:01 a.m. June 30, 2021; Ex. NJ-024 and the campus provisions of Ex. NJ-032, ended May 28, 2021; Ex. VA-013; Ex. VA-014; Ex. VA-016, ended May 28, 2021; Ex. MN-029, ended November 20, 2020; Ex. RI-033, ended May 14, 2021; Ex. UT-029; Ex. UT-030; Ex. UT-031; Ex. UT-032; Ex. UT-033; Ex. UT-034; Ex. UT-037; Ex. UT-038; Ex. UT-039; Ex. UT-042, the last superseded May 4, 2021 by UPHO 2021-11 (Ex. UT-043); Ex. MS-036; Ex. MS-050; Ex. MS-051; Ex. MI-060 through Ex. MI-063; Ex. MET-DEN-037, rescinded April 23, 2021; Ex. MET-DEN-100; Ex. MET-PHL-010; Ex. MET-CHI-053; Ex. DC-080, lifted May 21, 2021; Ex. LA-032, spent at the end of the 2020-21 academic year); the travel quarantines of New York (April 1, 2021), Connecticut (March 19, 2021), Massachusetts (March 22, 2021), Pennsylvania (March 1, 2021), Vermont (June 15, 2021) and Maine (May 1, 2021 administratively; June 30, 2021 formally), Maryland (July 1, 2021), Florida (August 5, 2020), Texas (May 21, 2020) and the District (May 2021) (Ex. NY-006; Ex. NY-047; Ex. CT-034; Ex. MA-025; Ex. MA-045; Ex. PA-021; Ex. PA-027; Ex. VT-080; Ex. ME-013; Ex. ME-026; Ex. MD-023; Ex. FL-012; Ex. TX-017; Ex. DC-012); Proclamations 10014, 10052 and 10131 (Ex. ECO-A-010; Ex. ECO-A-011; Ex. ECO-A-012, expired March 31, 2021); the SEVP rule of July 6, 2020 (Ex. SEC-15-005); the federal leave mandate (Ex. FED-170, expired December 31, 2020); the general regimes of Ohio (June 2, 2021), Michigan (Ex. MI-076, June 22, 2021), Massachusetts (Ex. MA-048, May 29, 2021), Pennsylvania (Ex. PA-100, June 28, 2021), Illinois (Ex. IL-037, June 11, 2021), California (Ex. CA-029, June 15, 2021) and Vermont (Ex. VT-043, June 15, 2021); the CDC eviction orders after July 31 and August 26, 2021 (Ex. FED-025; Ex. FED-026); the TSA surface directive SD 1582/84-21-01A after September 13, 2021 (Ex. FED-051); Arizona's EO 2021-15 after its rescission on September 29, 2021 (Ex. AZ-043); Ohio's Am. H.B. 244 as an obligation before its effective date of October 13, 2021 (Ex. OH-064); the October 18, 2021 deadline of Washington's Proclamation 21-14.1, the November 1, 2021 enrollment date of Nevada's regulation, the October 15, 2021 employment bar of Philadelphia's regulation, the October 17, 2021 vaccination deadline of Massachusetts's Executive Order No. 595, the October 18, 2021 compliance date of New Jersey's EO 253 and the October 7, 2021 verification date of CUNY's mandate, each stated only for the issuance, verification and preparation duties that ran inside the quarter (Ex. WA-079; Ex. NV-055; Ex. MET-PHL-021; Ex. MA-068; Ex. NJ-057; Ex. SEC-27-011); the contractor clauses under Executive Order 14042 required from October 15, 2021 (Ex. FED-063; Ex. FED-274); South Dakota's Executive Order 2021-14 of October 27, 2021 (Ex. SD-031); and Proclamation 10294 of October 25, 2021, effective November 8, 2021, which fixes from the Government's own hand that the entry suspensions ran through every day of this quarter (Ex. ECO-A-009).⁶⁰