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The COVID Project

The governmental orders by layer

The orders that reached this industry came from seven layers of government, and the Library holds them layer by layer: the federal agencies and the President; the fifty States and the District of Columbia; the metropolitan counties, cities and health districts; the sector regulators, boards, courts, tribes and territories; the counterparties whose own orders limited the commerce between them and the hospital; the standing statutory duties beneath the orders; and the ecosystem instruments that reached the hospital's supplies, workforce and travel. Every instrument cited on this page is indexed in the Library with its issuer, dates, in-force quarters and grade, and every instrument graded unverified is described only by category and never cited by name. This section describes the layers and the lead instruments in each; the quarters section applies them quarter by quarter.

The universe

The scale of the orders

Forty-two States and territories issued mandatory stay-at-home orders reaching 2,355 of the nation's 3,233 counties between March 1 and May 31, 2020, by the CDC's own count (Ex. LAW-201); the COVID Analysis and Mapping of Policies project catalogues more than 20,000 policy instruments at the national and State level, with about 8,000 more at the county level (Ex. LAW-202); the Council of State Governments counted 2,065 executive orders of governors and State agencies between February 2020 and June 29, 2020 alone (Ex. LAW-203); and the Department of Health and Human Services' dataset of State and county policy orders runs to 4,218 entries from March 23, 2020 to August 31, 2021 (Ex. LAW-205).6 On July 2, 2021, the first full day of the third quarter of 2021, thirty-five States were under a declared emergency and nine under a statewide face-covering requirement, the most visible of the airborne-transmission controls the States imposed on every indoor workplace; on September 21, 2021 the counts were twenty-five and eleven (Ex. LAW-246; Ex. LAW-247).7 The Bureau of Labor Statistics recorded the fall of 1.4 million health care jobs in April 2020 (Ex. LAW-206), and the Bureau of Economic Analysis recorded that GDP "decreased at an annual rate of 32.9 percent in the second quarter of 2020," a decline that "reflected the response to COVID-19, as 'stay-at-home' orders issued in March and April were partially lifted" (Ex. LAW-253).8 For this industry the universe is denser and more specific than for any other: the Library's sector collection holds 128 instrument records addressed to hospitals or governing their operation, 72 of them graded from the issuing authority's own text and 40 verified from an identifiable secondary source (the American College of Surgeons' trackers of April 21 and June 8, 2020 supplying the operative text of thirty-one State instruments among them); an instrument the Library grades below that is described on this page only by category, and the State collections hold several hundred more instruments addressed to or governing hospitals.9

The federal layer

The predicates

The Secretary of Health and Human Services determined on January 31, 2020 that a public health emergency existed, effective January 27, 2020, and renewed the determination every ninety days through the period, most recently for these quarters on July 19, 2021 (Ex. FED-016); the President declared a national emergency on March 13, 2020. Those two instruments are treated here as predicates only. What they authorized is treated as orders.

The instruments that reorganized the hospital

CMS's section 1135 blanket waivers, retroactive to March 1, 2020 and continued "through the end of the emergency declaration," waived the enforcement of EMTALA at alternate screening sites, the verbal-order, discharge-planning and medical-staff conditions of participation, and the physical-environment rules, so that every surge site, every off-campus bed and every emergency credential of the period was built on federal terms (Ex. SEC-01-010; Ex. FED-160).10 CMS's interim final rules of March 31, May 8, September 2 and November 2, 2020 rewrote Medicare's payment and participation rules for the duration (Ex. FED-090; Ex. FED-091; Ex. FED-092; Ex. FED-093), and the September 2 rule made daily COVID-19 reporting a condition of every hospital's participation: "During the [PHE] the hospital must report information in accordance with a frequency, and in a standardized format, as specified by the Secretary," on pain of termination (Ex. SEC-01-004).11 CMS's survey memoranda suspended routine surveys, prioritized infection-control surveys and raised infection-control penalties (Ex. FED-099; Ex. FED-165; Ex. FED-166), and its QSO-20-13 memorandum of March 4, 2020, revised March 30, 2020, told every hospital to "Reschedule elective surgeries, procedures, and other visits as necessary" and to "Limit visitors," the standard the State orders converted into law and the surveyors enforced under the infection-control condition of participation (Ex. SEC-01-006; Ex. FED-096).12 CMS's recommendations of March 18, April 7 and April 19, 2020 fixed the tiers, the gating criteria and the conditions of every State resumption; they are treated as the standards the State orders incorporated, and the orders are cited (Ex. SEC-01-007; Ex. SEC-01-008; Ex. SEC-01-009; Utah's order of March 23, 2020; Ex. AZ-015).13

The instruments that governed the hospital's supplies

The President delegated Defense Production Act priority and allocation authority for health and medical resources on March 18, 23 and 27, 2020 (Ex. SEC-01-014; Ex. SEC-01-015; Ex. SEC-01-022); HHS designated scarce materials on March 25, 2020 and renewed the designation through November 15, 2021 (Ex. FED-074; Ex. ECO-A-070; Ex. ECO-A-071); and FEMA's temporary final rule of April 7, 2020, extended on August 10 and December 31, 2020 to June 30, 2021, placed the export and allocation of respirators, masks, gloves and gowns under federal control, with exemptions notified on April 17, 2020 and June 11, 2021 (Ex. SEC-01-013; Ex. FED-075; Ex. FED-076; Ex. FED-077; Ex. FED-078; Ex. FED-079).14 Executive Order 13917 (April 28, 2020) delegated Defense Production Act authority over food supply chain resources for the duration of the national emergency, which fixed the terms on which the hospital's food-service counterparties operated (Ex. FED-073).

The instruments that governed the hospital's workforce and workplace

The FFCRA's leave mandate and the Department of Labor's temporary rules governed every hospital's leave from April 1 through December 31, 2020, with the health-care-provider exclusion narrowed by the September 16, 2020 revision (Ex. FED-170; Ex. ECO-B-002; Ex. ECO-B-003).15 Executive Order 13999 (January 21, 2021) directed OSHA to consider an emergency temporary standard (Ex. FED-062); OSHA's National Emphasis Program of March 12, 2021 targeted health care (Ex. FED-082); the Healthcare Emergency Temporary Standard was published June 21, 2021, with compliance dates of July 6 and July 21, 2021 (Ex. SEC-01-001; Ex. FED-080); its inspection procedures issued June 28, 2021 (Ex. SEC-01-002; Ex. FED-081); the revised National Emphasis Program of July 7, 2021 placed hospitals first among its target industries and ran "for no more than 12 months" (Ex. SEC-01-003; Ex. FED-083); and OSHA's enforcement response plan of the same day governed citations (Ex. FED-084).16 Executive Order 13991 imposed workplace infection-prevention and exposure-control requirements on every federal building and on-site contractor from January 20, 2021, universal masking, physical distancing and the other CDC measures among them (Ex. FED-060); the Safer Federal Workforce Task Force's Model Safety Principles of July 29, 2021 required attestation of vaccination status by every onsite contractor (Ex. FED-272; Ex. FED-278); Executive Order 14042 (September 9, 2021) directed every agency to include in covered contracts entered into, extended, renewed or optioned on or after October 15, 2021 a clause requiring compliance with the Task Force's guidance (Ex. SEC-01-016; Ex. FED-063; Ex. FED-275); Executive Order 14043 required vaccination of the federal workforce (Ex. FED-064); and the Department of Veterans Affairs mandated vaccination of its medical employees on July 26, 2021 (Ex. ECO-B-089; Ex. AGY-FED-HEALTH-OTHER-069; Ex. AGY-FED-HEALTH-OTHER-070). The Department of Defense postponed elective procedures at every military treatment facility from March 31 to May 21, 2020 and conditioned the TRICARE network's care.17 CMS's long-term-care vaccination rule of May 21, 2021 (Ex. FED-094; Ex. FED-163) and its announcements of August 18 and September 9, 2021 (Ex. SEC-01-020; Ex. SEC-01-017) fixed the counterparty and staffing environment of the third quarter of 2021; the hospital staff vaccination rule itself, CMS-3415-IFC of November 5, 2021, is post-period and is never treated as in force (Ex. SEC-01-018).18

The instruments that governed travel and entry

Proclamations 9984 and 9992 (China and Iran) ran from February 2020 to November 8, 2021, Proclamation 10014 suspended most immigrant entry from April 23, 2020 until its revocation on February 24, 2021, Proclamation 10052 suspended H-1B, H-2B, L and J entry from June 24, 2020 to March 31, 2021, and Proclamations 10143 and 10199 (the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa and India) ran through the third quarter of 2021 (Ex. FED-200; Ex. FED-201; Ex. FED-210; Ex. FED-214; Ex. FED-211; Ex. FED-207; Ex. FED-208; Ex. FED-209); the land-border notifications continued the Canada and Mexico restrictions month by month through October 21, 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); the CDC's Title 42 orders were in force on every day of 2021 and its inbound-testing order on every day from January 26, 2021 (Ex. FED-034; Ex. FED-037; Ex. FED-038; Ex. FED-042); and the CDC's conveyance order, an airborne-transmission control that made face coverings a condition of carriage and was enforced by TSA security directives, conditioned every hospital worker's commute by bus, rail and air from February 1, 2021 through the period (Ex. FED-020; Ex. FED-050; Ex. FED-051; Ex. FED-052; Ex. FED-056; Ex. FED-057; Ex. FED-061).19 The Office for Civil Rights' telehealth enforcement discretion of March 17, 2020 and the DEA's telemedicine exception fixed the terms on which every hospital clinic moved online (Ex. FED-194; Ex. AGY-FED-HEALTH-OTHER-001; Ex. AGY-FED-HEALTH-OTHER-009; Ex. AGY-FED-HEALTH-OTHER-015); the FDA's emergency use authorizations for tests, ventilators and respirators, and its revocations of them noticed at 86 Fed. Reg. 48712 (Aug. 31, 2021), fixed what a hospital could buy and use (Ex. AGY-FED-HEALTH-OTHER-048 through Ex. AGY-FED-HEALTH-OTHER-055; the last is the March 6, 2023 reissuance of the umbrella surgical-mask authorization of August 5, 2020 and is cited for the authorization it recites); and the Provider Relief Fund's terms and conditions bound every recipient (Ex. AGY-FED-HEALTH-OTHER-118).

The fifty States

The Northeast

New York cancelled elective surgeries and ordered every general hospital to plan a fifty percent increase in beds on March 23, 2020, resumed county by county on conditions from April 29, held New York City and Long Island hospitals under the cancellation into June, and in the third quarter of 2021 required the first dose of every general hospital employee by September 27, 2021 and, by regulation, the airborne-transmission control of universal face coverings in every health care setting (Ex. NY-005; Ex. NY-019; Ex. NY-071; Ex. NY-073; Ex. NY-074; Ex. NY-078; Ex. NY-135).20 New Jersey suspended every adult elective surgery and invasive procedure from 5:00 p.m. on March 27 to 5:00 a.m. on May 26, 2020, resumed under Department of Health directives that governed capacity, protective equipment, staffing, cohorting, testing, visitors and reporting through January 11, 2022, and required vaccination or weekly testing of every covered worker from September 7, 2021 (Ex. NJ-006; Ex. NJ-016; Ex. NJ-063; Ex. NJ-066; Ex. NJ-067; Ex. NJ-071; Ex. NJ-074; Ex. NJ-078; Ex. NJ-084; Ex. NJ-085; Ex. NJ-056).21 Pennsylvania prohibited elective procedures from March 19, 2020, required daily hospital reports of supplies and equipment from March 24, 2020, amended on July 10, 2020, January 27, 2021 and August 13, 2021, and ordered a fifty percent reduction of elective procedures on regional notice from November 23, 2020 to August 23, 2021 (Ex. PA-004; Ex. PA-069; Ex. PA-025; Ex. PA-044; Ex. PA-041; Ex. PA-101).22 Massachusetts restricted hospital visitors from March 17, 2020 and postponed every nonessential elective invasive procedure from March 18, 2020, permitted attested providers to resume urgent procedures from May 18, ordered the scheduling of elective invasive procedures from June 24 and again from December 11, 2020 to March 1, 2021, kept the infection-prevention requirement of face coverings in health care and congregate settings from May 29, 2021 and required vaccination of long-term-care personnel by October 10, 2021 (Ex. MA-057; Ex. SEC-01-071; Ex. MA-060; Ex. MA-061; Ex. MA-065; Ex. MA-066; Ex. MA-050; Ex. MA-067).23 Maryland's Secretary of Health ceased elective and non-urgent procedures from 5:00 p.m. on March 24, 2020, resumed them on conditions from 7:00 a.m. on May 7, restated the directive repeatedly through 2020 and 2021 with hospital surge and visitation duties running to December 31, 2021, and required proof of a first dose from every hospital worker by September 1, 2021 (Ex. MD-040; Ex. MD-044; Ex. MD-043; Ex. MD-050; MDH Order 2021-06-15-03; Ex. ECO-B-056; Ex. MD-060; Ex. SEC-01-103).24 Connecticut's Office of Health Strategy waived the certificate-of-need requirements for every hospital and outpatient surgical facility that temporarily suspended services or added beds, from March 25, 2020 "[d]uring the pendency of the public health emergency," its Department of Public Health barred visitors from nursing homes, residential care homes and chronic disease hospitals from March 13 to September 25, 2020 and required universal masking, as an airborne-transmission control, in health care settings from August 7, 2021 (Ex. CT-064; Ex. CT-059; Ex. CT-060; Ex. CT-052).25 Rhode Island's Executive Orders 20-17, 20-21, 20-33 and 20-70 and their successors through Executive Order 21-91 suspended certificate-of-need and hospital-capacity rules from April 2020 through the third quarter of 2021, the 2021 restatements, Executive Orders 21-67 and 21-81, being recited in the Appropriations Act that carried them, and its Department of Health required immunization of every health care worker by October 1, 2021 (Ex. RI-011; Ex. RI-013; Ex. RI-018; Ex. RI-023; Ex. RI-073; Ex. RI-058; Ex. RI-072; Ex. RI-090).26 Vermont postponed all non-essential adult elective surgery from March 20, 2020, authorized the resumption of clinic visits, diagnostic imaging and outpatient procedures under Health Department mitigation requirements from May 4, 2020, and carried the Commissioner's mitigation requirements in section 4 of the amended and restated order from June 15, 2020 to June 15, 2021 (Ex. SEC-01-080; Ex. VT-018; Ex. VT-095).27 New Hampshire prohibited visitors at every nursing, assisted-living, long-term-care and residential-care facility from 11:59 p.m. on March 15, 2020 and authorized waivers of hospital licensing rules to prevent the overburdening of hospitals (Ex. NH-001 ¶¶ 3, 10), activated the New Hampshire Crisis Standards of Care Plan by Emergency Order #33 on April 17, 2020 (Ex. NH-044), and made its Guiding Principles for Responsibly Resuming Health Care Services binding as State reopening guidance from May 4, 2020 to May 7, 2021 (Ex. NH-051).28 Maine adopted the emergency rule adding COVID-19 to the immunizations required of every health-care, EMS and dental employee on August 12, 2021, requiring the final dose by September 17, 2021 for full vaccination by October 1, with exclusion of the unvaccinated from the worksite and enforcement deferred by notice to October 29, 2021.29 Delaware amended its hospital licensing standards by emergency order effective July 1, 2021 and again, with vaccination-or-testing of every staff member, vendor and volunteer, effective September 30, 2021 (Ex. DE-062; Ex. DE-047; Ex. DE-046; Ex. DE-055; Ex. DE-064; Ex. AGY-ST-HEALTH-SUBORDERS-041), and imposed the infection-prevention requirement of universal masking on every student, staff member and visitor in every K-12 school and in State congregate settings from August 16, 2021 (Ex. DE-044).30 The District of Columbia's health department recommended the postponement of elective procedures on March 17, 2020 (Ex. SEC-01-116) and then governed their resumption by mandatory Phase One and Phase Two guidance from May 29, June 22 and September 29, 2020 through the second quarter of 2021 (Ex. DC-037; Ex. DC-069; Ex. DC-038), and Mayor's Order 2021-099 of August 10, 2021 set the first-dose deadline of September 30, 2021 for every health care worker (Ex. SEC-04-059; Ex. DC-075).31

The South

Texas postponed every surgery and procedure "not immediately medically necessary" from March 22, 2020, permitted resumption from April 22 only for hospitals certifying a twenty-five percent reserve and protective-equipment self-sufficiency, required a fifteen percent reserve from May 1, 2020 and a ten percent reserve from September 17, 2020, re-postponed elective procedures in Bexar, Dallas, Harris and Travis Counties from June 26 and in more than one hundred counties from June 30, converted the postponement into a regional trigger on September 17 and October 14, 2020 that ran with the reserve until March 10, 2021, and in the third quarter of 2021 forbade governmental entities, including public hospital districts, to mandate staff vaccination or proof of vaccination while its disaster declaration was renewed monthly (Ex. TX-004; Ex. TX-009; Ex. TX-012; Ex. TX-020; Ex. TX-024; Ex. TX-026; Ex. SEC-01-051; Ex. SEC-01-052; Ex. TX-001; Ex. TX-038).32 Florida prohibited every medically unnecessary, non-urgent or non-emergency procedure from March 20 to May 4, 2020, permitted resumption only for facilities able to convert beds to surge use and self-sufficient in protective equipment, and forbade any business to require vaccination documentation of patrons, by Executive Order 21-81 from April 2, 2021 and, from July 1, 2021, by section 381.00316 on pain of a $5,000 fine (Ex. FL-009; Ex. SEC-01-065; Ex. FL-056; Ex. SEC-01-082).33 Kentucky's Cabinet for Health and Family Services ceased every non-emergent in-person procedure from March 18, 2020, resumed in four phases from April 27 to May 27, 2020 with a thirty percent bed reserve and a fifty percent volume cap, and modified its orders on September 10, 2020 (Ex. KY-009; Ex. KY-015; Ex. KY-029). Virginia's Order of Public Health Emergency Two prohibited procedures requiring protective equipment from March 25 to May 1, 2020, and its Executive Order 52 authorized hospitals to add beds (Ex. VA-003). West Virginia prohibited all elective medical procedures from April 1, 2020 and kept Executive Orders 28-20 and 30-20, requiring hospital capacity plans and protective-equipment sufficiency, in force through the third quarter of 2021 by Executive Order 12-21 (Ex. WV-014; Ex. WV-023; Ex. WV-024; Ex. WV-045; Ex. WV-080 (rev. Aug. 21, 2020; through the second quarter of 2021); Ex. WV-064). Tennessee postponed non-essential procedures from March 24 to April 30, 2020, restricted long-term-care visitation to February 27, 2021, and suspended licensing and capacity rules for hospitals from August 6 to October 5, 2021 (Ex. SEC-01-073; Ex. SEC-01-074; Ex. TN-019; Ex. TN-052; Ex. SEC-01-075). Alabama's State Health Officer barred hospital visitation from March 19, 2020, postponed all procedures from March 28 to April 30, 2020, carried hospital visitation rules through the Safer at Home and Safer Apart orders to 11:59 p.m. on May 31, 2021, and the Governor proclaimed a hospital-capacity emergency on August 13, 2021 (Ex. AL-005; Ex. AL-011; Ex. AL-024; Ex. AL-034; Ex. AL-045; Ex. AL-051 ¶ 7; Ex. AL-052). Mississippi's Executive Order 1470 ordered all licensed health care professionals and facilities to postpone all surgeries and procedures not immediately medically necessary from April 10, 2020 until Executive Order 1477 permitted them from April 27, 2020 within the CMS tiers with a twenty-five percent reserve and one visitor, its Executive Order 1471 granted civil immunity to health care facilities and credentialing authority to the boards, and the State imposed a statewide hospital rule on October 21, 2020 and carried it to March 3, 2021 (Ex. MS-006; Ex. SEC-01-088; Ex. MS-010; Ex. MS-040). Louisiana's Department of Health confined every medical and surgical procedure to emergency conditions from March 21, 2020, permitted time-sensitive procedures on protective-equipment and testing conditions from April 27, extended the regime "until further notice" on July 2, 2020 and released it on May 24, 2021, and governed nursing-home visitation by order from September 18, 2020 through the period (Ex. LA-043; Ex. LA-044; Ex. LA-045; Ex. LA-046; Ex. LA-047; Ex. LA-050; Ex. SEC-01-106), and Louisiana's Department of Insurance, by Emergency Rule 46 effective 12:01 a.m. on August 9, 2021, required every health insurance issuer to cover care at step-down facilities for patients transferred out of any acute care hospital whose inpatient occupancy exceeded 85 percent. Arkansas's Department of Health mandated hospital screening from March 19, 2020, directed the postponement of elective surgeries from April 3, resumed them with pre-procedure testing to August 1, 2020, and governed long-term-care visitation, screening and staffing by directive through the third quarter of 2021 (Ex. AR-035; Ex. AR-040; Ex. AR-044; Ex. AR-059; Ex. AR-064; Ex. AR-068). North Carolina's Secretary requested the suspension of elective procedures from March 23, 2020, and the State's stay-at-home and visitation orders supplied the mandatory layer (Ex. NC-068; Ex. NC-004). Oklahoma postponed all elective surgeries from March 24 to April 24, 2020 and resumed them in tiers (Ex. OK-006; Ex. OK-011; Ex. OK-018; Ex. OK-020). Georgia and South Carolina issued no statewide elective-procedure order; their hospitals operated under the stay-at-home, visitation and emergency instruments held in the Library's State records (Ex. GA-041; Ex. GA-042; Ex. GA-044; Ex. SEC-01-084; Ex. SC-003).34

The Midwest

Ohio's Director of Health ordered that non-essential surgeries and procedures "should not be conducted" from March 18, 2020, permitted procedures without an overnight stay from May 1, amended the requirements on June 2, 2020 and rescinded them April 5, 2021, restricted nursing-home access by seven amended orders to June 18, 2021, and kept its testing and reporting orders in force through the third quarter of 2021 (Ex. OH-007; Ex. OH-027; Ex. OH-009; Ex. OH-036; Ex. OH-102; Ex. OH-075; Ex. OH-049; Ex. OH-071; Ex. OH-072).35 Michigan prohibited hospital visitors from March 14, 2020 and non-essential procedures from March 21 to May 28, 2020, and its Department of Health and Human Services governed residential care by emergency order from October 2020 through the third quarter of 2021 (Ex. MI-003; Ex. SEC-01-086; Ex. SEC-01-089; Ex. MI-051; Ex. MI-055; the MDHHS order of May 21, 2021).36 Indiana directed the postponement of non-essential surgeries from March 16 and April 1, 2020, resumed them on conditions from April 27, directed hospitals to postpone non-emergent inpatient procedures from December 16, 2020 to January 3, 2021 and, by Executive Orders 20-53 and 21-01, to reprioritize them under evidence-based capacity criteria to January 31, 2021, with the county-based measures of Executive Orders 21-02 and 21-06 running to April 5, 2021, and in the third quarter of 2021 directed every hospital by Executive Order 21-24 (September 1, 2021) to implement evidence-based capacity criteria, to reprioritize or postpone non-emergent surgeries or procedures where necessary and to report diversion status and staffing daily (Ex. IN-003; Ex. IN-011; Ex. IN-022; Ex. IN-048; Ex. IN-051; Ex. IN-053; Ex. IN-056; Ex. IN-071). Illinois's Department of Public Health directed postponement from March 19, 2020 and resumption on criteria from May 11; the Governor required vaccination or weekly testing of every health care worker from September 5 and then September 19, 2021 (Ex. SEC-01-095; Ex. SEC-01-078; Ex. SEC-01-079).37 Minnesota postponed every procedure using protective equipment from 5:00 p.m. on March 23 to May 10, 2020 on pain of a misdemeanor, required inventory and reporting of protective equipment from March 25, 2020, and governed resumption by written plan, protective-equipment supply, testing and capacity monitoring until May 27, 2021 (Ex. SEC-01-066; the inventory and reporting order of March 25, 2020; Ex. SEC-01-067). Iowa prohibited nonessential surgeries from March 27, 2020, permitted them from April 27 on a thirty percent bed reserve, limited them again from November 17, 2020 to February 7, 2021, and extended its disaster emergency through the third quarter of 2021 (the Governor's proclamation effective March 27, 2020; Ex. IA-011; the proclamation effective November 17, 2020 and its continuations of December 10 and 17, Ex. IA-032; Ex. IA-033; the proclamation ending the limits on February 7, 2021; Ex. IA-041). Nebraska prohibited elective surgeries and procedures by directed health measure from April 3 to May 4, 2020, paused elective surgeries requiring an overnight stay by the directed health measures of November 16, 2020 under a hospitalization-rate framework that ran to May 24, 2021, kept Executive Order 20-12 of March 31, 2020, which suspended the twenty-five-bed limit on critical access hospitals and the prohibition on overnight stays at ambulatory surgical centers and expanded telehealth, in force to 11:59 p.m. on August 27, 2021, and on August 26, 2021 declared by Executive Order 21-12 that "a hospital capacity emergency exists" and suspended licensing, training and credentialing rules to add health care workforce capacity to December 31, 2021 (Ex. SEC-01-107; Ex. NE-023; Ex. NE-050; Ex. NE-067; Ex. NE-068).38 Wisconsin, Missouri, Kansas, North Dakota and South Dakota governed their hospitals through stay-at-home and health-care orders (Ex. WI-002; Missouri's and Kansas's stay-at-home orders; Ex. ND-004; Ex. ND-020; Ex. SD-005; Ex. SD-009), South Dakota's Executive Orders 2020-08 and 2020-12 directing the postponement of non-essential elective surgeries from March 23 and April 6, 2020 and North Dakota restricting long-term-care visitation from April 6, 2020 to March 12, 2021 (Ex. SD-005; Ex. SD-009; Ex. ND-020; Ex. ND-048).39

The West

California's State Public Health Officer ordered hospitals in regions with ten percent or less intensive-care capacity to accept transfers and delay non-essential surgeries from December 17, 2020 and January 5 to February 5, 2021, required verification of every health care worker's vaccination status with testing of the unvaccinated from August 9, 2021, full vaccination of every hospital worker by September 30, 2021, and vaccination or testing of every indoor hospital visitor from August 11, 2021, and Cal/OSHA's COVID-19 Prevention emergency temporary standard bound every workplace from November 30, 2020 as readopted June 17, 2021 (Ex. CA-026; Ex. CA-031; Ex. CA-030; Ex. SEC-01-060; Ex. CA-038; Ex. AGY-ST-HEALTH-SUBORDERS-092; Ex. AGY-ST-HEALTH-SUBORDERS-110).40 Washington prohibited non-urgent procedures from March 19, 2020, permitted them from May 18 only under the Governor's clinical and protective-equipment criteria, replaced that regime on December 3, 2020 with Proclamation 20-24.2, the order Tri-State construed, which remained in force through the third quarter of 2021, and prohibited any health care setting from permitting an unvaccinated provider to work after October 18, 2021 by Proclamations 21-14, 21-14.1 and 21-14.2 (Ex. WA-015; Ex. WA-032; Ex. WA-049; Ex. WA-077; Ex. WA-079; Ex. WA-087; Ex. WA-002; Ex. WA-012; Ex. WA-023; Ex. WA-043; Ex. WA-057; Ex. WA-078).41 Oregon cancelled every elective and non-urgent procedure using protective equipment from March 23, 2020, permitted them from May 1 under Oregon Health Authority criteria that ran to June 30, 2021, and required every health care worker to be vaccinated or excepted by October 18, 2021 and, from August 20, 2021, the airborne-transmission control of universal face coverings in every health care setting (Ex. SEC-01-068; Ex. SEC-01-069; Ex. OR-046; Ex. OR-051; Ex. SEC-01-110; Oregon OSHA's rule OAR 437-001-0744 as made permanent May 4, 2021 and amended August 13, 2021).42 Arizona delayed every elective surgery using protective equipment from March 21, 2020, ordered every hospital to increase capacity, and permitted resumption from May 1, 2020 only on exemption for facilities at no more than eighty percent occupancy with fourteen days of protective equipment and testing of every patient, a regime rescinded April 1, 2021 (Ex. AZ-004; Ex. AZ-008; Ex. AZ-015; Ex. SEC-01-061). Colorado suspended voluntary and elective procedures from March 23 to April 26, 2020, permitted them from April 27 under protocols amended thirteen times to April 16, 2021, governed skilled nursing facilities by Public Health Order 20-20 through the period, and required vaccination of every licensed health care facility's personnel by emergency rule of August 30, 2021 with a first dose by September 30 (the executive order suspending elective procedures from March 23, 2020; Ex. SEC-01-090; Public Health Order 20-29 and its amendments through the Thirteenth Amended order of April 9, 2021; Ex. CO-002; Ex. CO-055; Ex. CO-091).43 New Mexico prohibited non-essential health care services and surgeries from March 27, 2020, permitted gradual resumption under Department of Health guidelines and attestation from May 1, restricted non-essential surgical procedures again from December 11, 2020 to January 4, 2021, restricted nursing facility visitation by order from March 13, 2020, and by the Public Health Emergency Order of August 17, 2021 required every hospital worker to be fully vaccinated, the first dose within ten days, by August 27, 2021, and the second within forty days of the first, with exempt workers subject to weekly testing and face coverings as exposure controls, and by the Amended Order of September 15, 2021 required every hospital to report its workers' vaccination counts to the Department of Health (Ex. NM-007; Ex. NM-013; Ex. NM-043; Ex. NM-002; Ex. NM-068; Ex. NM-071). Utah postponed every elective surgery by reference to the CMS recommendations from March 25, 2020, imposed infection-prevention and exposure-control protocols on every covered health care provider by order of April 21, 2020 (announced April 22; the retrieved text is the May 1, 2020 version, in force to May 15, 2020), face masks for every individual in the facility within six feet of another, entry screening and one-companion limits among them, and declared a hospital-capacity emergency on November 8, 2020 (the State Public Health Orders of March 23 and April 21, 2020; Ex. UT-028). Nevada's Directive 011 governed health care licensing and scope from April 1, 2020 through the third quarter of 2021, as amended by Directive 046 on July 20, 2021 (Ex. NV-013; Ex. NV-040), Directive 047 imposed the airborne-transmission control of face coverings in every indoor public space from July 30, 2021 (Ex. NV-041), Nevada OSHA adopted the federal Healthcare Emergency Temporary Standard for every Nevada health-care workplace effective July 1, 2021 (Ex. AGY-ST-LABOR-WORKPLACE-040), and the State Board of Health's emergency regulation of September 10, 2021 required vaccination of State health-care and detention workers by November 1 (Ex. NV-056; Ex. NV-057). Idaho suspended hospital and licensing rules from April 2, 2020, activated its National Guard for its hospitals by Executive Order 2021-11 on August 31, 2021 (Ex. ID-030; the Governor's releases of August 31 and September 21, 2021, Ex. ID-062 and Ex. ID-067, are cited as the State's own account at the time) and activated the Crisis Standards of Care Plan of October 2020 (Ex. ID-052) for the Panhandle and North Central Health Districts on September 7 and statewide on September 16, 2021 (Ex. ID-071; Ex. ID-064; Ex. SEC-01-100; Ex. ID-072). Alaska postponed non-urgent and elective procedures from March 19, 2020, barred visitors from health care facilities by Health Mandate 005 (March 19, 2020, revised April 7) and Health Mandate 015 (issued April 15, 2020; Sections I and II effective April 20 and May 4; expired November 15, 2020) (Ex. AK-007; Ex. AK-017), suspended visitation at the State's psychiatric institute and other State institutions from March 14, 2020 (Ex. AK-003), and activated crisis standards of care on September 21, 2021 (Ex. AK-031; Ex. AK-092). Montana's directives of March 15 and 23, 2020 suspended nursing-home visitation and imposed hospital surge-capacity, procurement and patient-transfer duties carried to June 30, 2021 (Ex. MT-003; Ex. MT-006; Ex. MT-034; Ex. MT-035), and its House Bill 702 of May 7, 2021 forbade every employer, hospitals included, to condition employment on vaccination status (Ex. SEC-01-081). Hawaii's Executive Order 21-06 of September 1, 2021 governed health care facilities through the emergency (Ex. HI-027). Wyoming's Department of Health issued its guidance on resuming elective procedures on April 24, 2020 (Ex. WY-011).44

The regional synthesis

Three features of the State layer matter for this industry. First, the spring 2020 elective-procedure orders were near-universal and were followed everywhere by conditional resumption on capacity, protective-equipment, testing and attestation terms fixed by order, so that the industry's largest service line operated on governmental conditions in every State through at least the summer of 2020 and in New Jersey, Washington, Pennsylvania, Maryland, West Virginia, Minnesota, Oregon and Rhode Island into 2021. Second, the winter of 2020-21 produced a second round of mandatory hospital orders in twelve States, each keyed to the hospital's own census. Third, in the third quarter of 2021 the State layer split: thirteen jurisdictions compelled the vaccination of the hospital workforce by dates inside or immediately after the quarter, while Texas, Montana and Arkansas forbade public hospitals or all employers to condition employment on vaccination and Florida and Georgia forbade businesses and State service providers to require vaccination documentation of those they served; a hospital in either group operated under an order that fixed what it could require of its staff, its visitors and its patients.45

The largest metros

The local layer

The metropolitan collections hold the county and city instruments that reached hospitals beneath the State layer. San Diego County barred non-essential personnel from every hospital from March 13, 2020 to June 15, 2021, ordered hospitals to delay elective procedures, and in the third quarter of 2021 kept its isolation and quarantine orders, with return-to-work conditions for health care workers, in force (Ex. MET-SAN-002; Ex. MET-SAN-003; Ex. MET-SAN-022; Ex. MET-SAN-023; Ex. MET-SAN-024).46 Riverside County barred non-essential personnel from hospitals and directed the postponement of elective surgery on April 4, 2020, and San Bernardino County imposed workplace infection-prevention and exposure-control requirements on every licensed facility from April 6, 2020 (temperature screening and symptom self-evaluation of every entrant, masking of all staff and single-facility staffing), restated them on May 8, 2020 with face coverings for every individual in the facility and N-95 respirators for health care professionals when available, and continued the regime by its order of June 15, 2021 through the period (Ex. MET-RIV-006; Ex. MET-RIV-022; Ex. MET-RIV-027; Ex. MET-RIV-023; Ex. MET-RIV-024; Ex. MET-RIV-031). Denver's Department of Public Health and Environment ordered the personnel of hospitals, clinical settings and their onsite contractors "to be fully vaccinated by September 30, 2021" (Ex. MET-DEN-023; Ex. MET-DEN-025).47 Philadelphia's Board of Health adopted an emergency regulation on August 12, 2021 barring any unvaccinated health care worker from working at a health care institution after October 15, 2021 (Ex. MET-PHL-021; Ex. MET-PHL-022). New York City required vaccination or testing of the staff of its public hospital system (Ex. MET-NYC-035). San Francisco's Order C19-07y required every business with personnel in the settings the order designated, hospitals and skilled nursing facilities among them, to ascertain vaccination status and ensure full vaccination (Ex. MET-SFO-008), and Contra Costa County required every health care facility to offer testing from September 25, 2020 (Ex. MET-SFO-037). Minneapolis regulated every congregate health care facility by misdemeanor-backed emergency regulation from April 28 to July 24, 2020 (Ex. MET-MSP-008; Ex. MET-MSP-012). Detroit's twenty-five-page order of October 9, 2020 carried health care, outpatient and telehealth sections (Ex. MET-DET-001), and the Wayne County orders of October 8 and 16, 2020 carried the long-term-care protections locally (Ex. MET-DET-014; Ex. MET-DET-032). San Antonio and Bexar County limited long-term-care staff to one facility from April 4, 2020, barred nursing-home visitation from July 17, 2020 and required every licensed hospital in the City to reserve ten percent of its capacity from November 25, 2020 (Ex. MET-SAT-009; Ex. MET-SAT-035; Ex. MET-SAT-051; Ex. MET-SAT-052). St. Louis County's Residential Living Facilities Order, Rapid Notification Order and Quarantine and Isolation Orders bound every hospital laboratory and every exposed worker from April 2, 2020 through the third quarter of 2021 (Ex. MET-STL-056; Ex. MET-STL-083; Ex. MET-STL-067; Ex. MET-STL-098). King County's isolation order confined every positive worker and its facilities order converted lodging to isolation and recovery use (Ex. MET-SEA-004; Ex. MET-SEA-050; Ex. MET-SEA-048). Marion County's Health and Hospital Corporation, a public hospital corporation, required vaccination of its workforce by September 20, 2021 (Ex. MET-IND-093), and Marion County's Public Health Order 35-2020 required tested visitors in nursing homes and, as an infection-prevention control, universal face coverings of everyone in hospitals from November 16 to December 14, 2020, its successor public health orders carrying the health-care-setting face-covering control into 2021 (Ex. MET-IND-035; the successors are described by category). New Orleans imposed the airborne-transmission control of face coverings "in all healthcare facilities, including physician's offices, hospitals, and long-term care facilities" in every guideline through September 30, 2021 (Ex. MET-MSY-027), and Baltimore City's Health Commissioner imposed the same control, requiring face coverings when "obtaining healthcare services, including ... hospitals," by order dated and effective August 10, 2021 (Ex. MET-BAL-017). Columbus's Executive Order 2021-01 of September 10, 2021 required, as an infection-prevention control, CDC-standard masking in health care facilities (Ex. MET-CMH-048). Orange County, Florida declared its third-quarter 2021 emergency on findings that providers "have had to turn down ... patients seeking elective procedures" (Ex. MET-ORL-013). The remaining metro instruments that reached this industry, including the general face-covering and exposure-control, proof-of-vaccination and gathering orders of the third quarter of 2021, are held in the Library's metro records.48

The sector regulators

The regulators of the hospital as a licensed facility and an employer

The State health department sub-order collections hold the Pennsylvania hospital reporting orders (Ex. AGY-ST-HEALTH-SUBORDERS-070; Ex. AGY-ST-HEALTH-SUBORDERS-018), the Delaware vaccination-or-testing orders for nine classes of facility effective September 30, 2021 (Ex. AGY-ST-HEALTH-SUBORDERS-041 through Ex. AGY-ST-HEALTH-SUBORDERS-050), California's All Facilities Letter 21-34 implementing the August 5, 2021 vaccination order (Ex. AGY-ST-HEALTH-SUBORDERS-092) and its guidance of July 28, 2021 stating the airborne-transmission control of universal masking in every health care setting (Ex. AGY-ST-HEALTH-SUBORDERS-110), New Jersey's hospital directive (Ex. AGY-ST-HEALTH-SUBORDERS-033) and the Massachusetts orders of 2021 (Ex. AGY-ST-HEALTH-SUBORDERS-116 through Ex. AGY-ST-HEALTH-SUBORDERS-120). The State labor agencies' standards bound every hospital as an employer: Virginia's emergency temporary standard from July 27, 2020, permanent standard from January 27, 2021 and amended standard from September 8, 2021 (16VAC25-220; the Safety and Health Codes Board's rulemaking record and its post-period revocation of March 23, 2022, Ex. AGY-ST-LABOR-WORKPLACE-001 and Ex. AGY-ST-LABOR-WORKPLACE-043, are cited for the standard's history and not as instruments in force), Michigan's MIOSHA emergency rules from October 14, 2020 (Ex. AGY-ST-LABOR-WORKPLACE-062 for the rules as refiled May 24, 2021), Oregon OSHA's COVID-19 rule, OAR 437-001-0744, effective as a temporary rule November 16, 2020, made permanent May 4, 2021, amended August 13, 2021 to restore the airborne-transmission control of face coverings in every indoor workplace alongside the rule's distancing, sanitation, ventilation, notification and training requirements, and amended again September 14, 2021 (Ex. AGY-ST-LABOR-WORKPLACE-018; Ex. AGY-ST-LABOR-WORKPLACE-021), Cal/OSHA's standard from November 30, 2020 as readopted June 17, 2021 (the Standards Board's finding of emergency, Ex. AGY-ST-LABOR-WORKPLACE-002, is the rulemaking record), Washington's workplace rules (Ex. AGY-ST-LABOR-WORKPLACE-050; Ex. AGY-ST-LABOR-WORKPLACE-054; Ex. AGY-ST-LABOR-WORKPLACE-055; Ex. AGY-ST-LABOR-WORKPLACE-056) and Nevada OSHA's adoption of the federal Healthcare Emergency Temporary Standard effective July 1, 2021 (Ex. AGY-ST-LABOR-WORKPLACE-040).49 The State boards of pharmacy, medicine and nursing issued the emergency rules on licensure, controlled substances and telemedicine under which every hospital credentialed and prescribed; they are held in the Library's records for the State health boards and are cited by exhibit on the Physician Practices and Outpatient Care page.50 The courts' orders reached the hospital's legal function (subpoenas, guardianships, commitments, collections) and are addressed on the Professional and Information Services and Financial Services pages. Tribal governments regulated hospitals on tribal land, including the Navajo Nation's public health emergency orders and the Cherokee Nation's employee vaccination order (Ex. AZ-068; Ex. OK-090; Ex. AGY-TRIBAL-020), and Puerto Rico's Executive Order OE-2021-062 imposed vaccination-or-testing on health care workers from August 16, 2021 (Ex. AGY-TERRITORIES-033).51

The counterparties

The orders on the hospital's counterparties

A hospital's operation runs through counterparties, and the counterparties' orders were orders limiting the commerce between them and the hospital. Nursing homes and post-acute facilities, the destination of every discharge that cannot go home, were under CMS's visitation, testing and reporting rules (Ex. FED-156; Ex. FED-161; Ex. FED-168; Ex. FED-091) and, from May 21, 2021, its vaccination-education-and-offer rule (Ex. FED-094; Ex. FED-163), and under State admission and visitation orders in every quarter (Ex. NH-001 ¶ 3; Ex. NJ-063; Ex. NJ-064; the Michigan MDHHS order of May 21, 2021; Ex. LA-050; Ex. AR-068; Ex. OH-049; Ex. OH-071; Ex. NM-002; Ex. TN-052; Ex. MT-035; Ex. ID-051; Ex. CO-002; Ex. WV-080 (rev. Aug. 21, 2020; through the second quarter of 2021); Ex. WV-064).52 Patients were confined by the stay-at-home orders of every State in the spring of 2020 and by the curfews and gathering limits of the winter of 2020-21, held State by State and metro by metro in the Library. Payers were rewritten by the CMS interim final rules (Ex. FED-090 through Ex. FED-093) and bound by State insurance bulletins such as Delaware's Bulletin No. 115. Emergency medical services and first responders were placed under the vaccination-verification orders of Marin County and Denver (Ex. MET-SFO-050; Ex. MET-DEN-023). Schools and child-care centers, on which the hospital's workforce depends, were closed in every State in the spring of 2020 and placed under infection-prevention orders, universal masking among their controls, in the autumn of 2021 (Ex. MET-DEN-024; Ex. MET-DET-013; Ex. MET-DET-015; Ex. DE-045; Ex. DE-066). Transit, the hospital workforce's commute, was cut, capped and placed under face-covering and exposure-control rules by the transit authorities and, from February 1, 2021, by federal order (Ex. FED-020; Ex. MET-DEN-045; Ex. MET-MSP-061; Ex. MET-STL-041).

The ecosystem

The six mechanisms

The Library's federal-ecosystem collection identifies six mechanisms by which orders addressed to others reached an employer, and each reached hospitals. Supply chain and borders: the Defense Production Act rules and designations, the export restrictions and the land-border notifications governed the market for protective equipment, respirators and drugs on every day of the period (Ex. FED-075 through Ex. FED-079; Ex. FED-074; Ex. ECO-A-071; Ex. FED-232 through Ex. FED-235). Workforce, schools and child care: the FFCRA mandate, the State paid-leave laws, the quarantine orders and the school orders removed staff from the building by law (Ex. FED-170; Ex. ECO-B-002; Ex. AGY-ST-LABOR-WORKPLACE-003; Ex. AGY-ST-LABOR-WORKPLACE-004; Ex. AGY-ST-LABOR-WORKPLACE-005). Travel and gatherings: the interstate traveler quarantines of New York, Connecticut, Hawaii and others confined travel nurses and locum physicians crossing State lines, and the gathering bans ended the industry's events (Ex. HI-003; Ex. ECO-C-031). The congresses, association meetings, continuing-education programs, hiring events and recurring gatherings of this industry that those orders disrupted, with the venue jurisdictions' instruments and the organizers' stated actions, are recorded in the Library's meetings records for this industry. Courts and public offices: the court closures reached the hospital's collections, guardianship and commitment work. Transit: the conveyance order and the transit agencies' rules conditioned every commute (Ex. FED-020; Ex. FED-051; Ex. FED-052). Health care as counterparty: for this industry the sixth mechanism runs inward, because the orders on nursing homes, physician practices, dental practices, home health agencies and laboratories were orders on the hospital's own referral, discharge and diagnostic network (Ex. FED-098; Ex. FED-156; Ex. FED-094).53 The mechanisms are applied in the interconnected-economy section below.

The standing duties

The duties beneath the orders

Beneath the emergency orders lay standing law that bound every hospital, health system and emergency medicine practice on every day of the six quarters, whether or not an order named it: the statutes that commanded every person to prevent and control communicable disease and every employer to furnish a safe and healthful workplace, the offense provisions that punished disobedience of health and emergency orders, and, in most States, the liability shields that protected only the complying business.54 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, whichever branch issued it, and the pandemic directives gave each duty its content.55 The three layers follow for seven States, New York, Ohio, Florida, New Hampshire, Washington, Texas and New Jersey, whose hospital orders this page sets out; the fifty-one-jurisdiction treatment is on the standing duties page.

Layer one: the orders' operating conditions

The first layer is the orders, whose verbs are commands. Texas: "all licensed health care professionals and all licensed health care facilities shall postpone all surgeries and procedures that are not immediately medically necessary" (Ex. TX-004), then resumption on certified conditions (Ex. TX-009). New Jersey: adult elective surgeries "are suspended in the State" (Ex. NJ-006), resumed under Health Department directives (Ex. NJ-016). Washington: "I hereby prohibit all hospitals ... from providing" non-urgent procedures (Ex. WA-015), and, in the Governor's reopening proclamation, "No employer may operate ... unless the employer ... complies with all public health authority orders and directives." New York: under the reopening executive orders, reopened entities "must be operated subject to the guidance promulgated by the Department of Health." Ohio resumed procedures on eight conditions (Ex. OH-019 ¶ 9) and commanded that "All businesses and operations shall continue to comply with Social Distancing Requirements" (Ex. OH-025); Florida permitted the prohibited procedures "only if" the facility had "the capacity to immediately convert additional facility-identified surgical and intensive care beds" for COVID-19 patients (Ex. SEC-01-065); New Hampshire's reopening emergency order commanded that "All businesses or other organizations operating within this State shall comply with the Universal Business Guidelines." Behind each stood a statute punishing its violation.56 A measure the Service calls "beyond the order" was, in each State, the order's own condition of operating.

Layer two: the standing statutes

The second layer commanded the same conduct before any order issued and after each lapsed. 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 & Safety Code § 81.002, Ex. DUT-TX-001), and on the employer: "Each employer shall" provide "a place of employment that is reasonably safe and healthful," use "methods of sanitation and hygiene" and "take all other actions reasonably necessary" (Labor Code § 411.103, Ex. DUT-TX-013).57 New York and New Jersey command a workplace "operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein" and one "reasonably safe and healthful for employees" (Labor Law § 200, Ex. DUT-NY-013; N.J.S.A. 34:6A-3, Ex. DUT-NJ-009). Since 1974 no person in charge of an Ohio "place of public accommodation, amusement, resort, or trade" may "negligently fail to take reasonable measures to protect the public from exposure to the contagion" (R.C. 3701.81(C), Ex. DUT-OH-007). Florida makes violating "any requirement adopted by the department pursuant to a declared public health emergency" a second-degree misdemeanor (Ex. DUT-FL-001). New Hampshire makes disobedience of its communicable-disease chapter "a misdemeanor if a natural person, or ... a felony if any other person" (Ex. DUT-NH-006) and commands that "Every employer shall provide employees with safe employment" (Ex. DUT-NH-011).58 Over all of them lay the general duty clause: 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" (29 U.S.C. § 654(a)(1), Ex. DUT-FED-001), enforced by citation from September 2020.59

Layer three: the liability shields

The third layer is the shields, which fixed compliance with governmental standards as the standard of care. Texas protects a business unless the claimant proves it "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease," for actions commenced from March 13, 2020 (Ex. DUT-TX-015; Ex. DUT-TX-014). Florida protects only a defendant that "made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance" (Ex. DUT-FL-012). New York and New Hampshire conditioned their narrower immunities on compliance with law and orders (Ex. DUT-NY-016; Ex. DUT-NH-014); New Jersey shielded only health care professionals acting "in support of the State's response" or in good faith "to prevent the spread of COVID-19," and left every other business its full duty of care (Ex. DUT-NJ-007). Ohio's shield set a culpability floor and provided that an order or guideline "shall neither create nor be construed as creating a duty of care" (Ex. DUT-OH-020), so Ohio's compulsion rests on its statutes and orders; Washington enacted none, and there a statute's breach is evidence of negligence (Ex. DUT-WA-013).60 Each compliance-conditioned shield rests on one premise: compliance with the governmental health standards is what a hospital owed.

A recommendation among these instruments is treated as compulsory only through the instrument incorporating it: CMS's tiering recommendations through the State orders adopting them (Utah's order of March 23, 2020; Ex. AZ-015), its survey memoranda written in "should" through the infection-control condition of participation (Ex. SEC-01-006; Ex. FED-165), and the CDC's guidance through the general duty clause, against which OSHA directed citation from April 13, 2020 and cited from September 2020 (Ex. AGY-FED-LABOR-IMMIGRATION-020; Ex. LAW-487).61 A hospital that screened every entrant, distanced its waiting rooms, sanitized its units, excluded its exposed workers and required universal face coverings under the workplace infection-prevention regime was not choosing; it was complying.

  1. The four counts are stated from the exhibits themselves: Ex. LAW-201 (the CDC's count of stay-at-home orders); Ex. LAW-202 (the COVID Analysis and Mapping of Policies project); Ex. LAW-203 (the Council of State Governments); Ex. LAW-205 (the Department of Health and Human Services' dataset page, whose entry count of 4,218 and date range are read from the dataset's own metadata at healthdata.gov). ↩
  2. Kaiser Family Foundation, State COVID-19 Data and Policy Actions (as of July 2, 2021) (Ex. LAW-246); id. (as of Sept. 21, 2021) (Ex. LAW-247). ↩
  3. Bureau of Labor Statistics, The Employment Situation, April 2020 (Ex. LAW-206); Bureau of Economic Analysis, Gross Domestic Product, 2nd Quarter 2020 (Advance Estimate) (Ex. LAW-253); Census Bureau, Small Business Pulse Survey, week of Apr. 26-May 2, 2020 (Ex. LAW-209) ("44.9% of business experienced [supply-chain] disruptions," 61.4 percent in health care). ↩
  4. The Library's sector collection for hospitals and health systems (exhibits prefixed SEC-01): 128 instrument records, of which 72 are graded "Primary source read," 40 "Confirmed from a secondary source" and 16 unverified; the unverified records are described on this page only by category and never by name. ↩
  5. Ex. SEC-01-010 (Ex. FED-160) ("Emergency Medical Treatment & Labor Act (EMTALA). CMS is waiving the enforcement of [EMTALA] ... Verbal Orders. CMS is waiving the requirements of 42 CFR 482.23, 482.24 and 485.635(d)(3) ... Due to current hospital surge, CMS is waiving ..."). ↩
  6. CMS-1744-IFC, 85 Fed. Reg. 19230 (Apr. 6, 2020, effective Mar. 31, 2020) (Ex. FED-090); CMS-5531-IFC, 85 Fed. Reg. 27550 (May 8, 2020) (Ex. FED-091); CMS-3401-IFC, 85 Fed. Reg. 54820 (Sept. 2, 2020), 42 C.F.R. §§ 482.42(e), 485.640(d), 483.80(h), 493.41 (Ex. SEC-01-004; Ex. FED-092); CMS-9912-IFC, 85 Fed. Reg. 71142 (Nov. 6, 2020, effective Nov. 2, 2020) (Ex. FED-093). Enforcement of § 482.42(e) proceeded by notice and termination under 42 C.F.R. part 488; the October 6, 2020 enforcement memorandum is described by category only and the binding text is the regulation. ↩
  7. QSO-20-20-ALL (Ex. FED-099); QSO-20-31-All (Ex. FED-165); QSO-20-35-ALL (Ex. FED-166); QSO-20-13-Hospitals-CAHs (REVISED) (Ex. SEC-01-006; Ex. FED-096). The file of Ex. SEC-01-006 is QSO-20-13 as posted in 2025 with its revision history; its March 30, 2020 text is verified from a secondary source and is treated as the survey standard enforced under 42 C.F.R. § 482.42, not as an order. ↩
  8. Ex. SEC-01-007 (Mar. 18, 2020) ("all elective surgeries, non-essential medical, surgical, and dental procedures be delayed"); Ex. SEC-01-008 (Apr. 7, 2020); Ex. SEC-01-009 (Apr. 19, 2020); Utah Department of Health, State Public Health Order of March 23, 2020 ("in accordance with version 3.15.20 of the CMS Adult Elective Surgery and Procedures Recommendations"); Arizona Executive Order 2020-32 (Ex. AZ-015). ↩
  9. Ex. SEC-01-013; 85 Fed. Reg. 20195 (Apr. 10, 2020) (Ex. FED-075); 85 Fed. Reg. 22021 (Apr. 21, 2020) (Ex. FED-076); 85 Fed. Reg. 48113 (Aug. 10, 2020) (Ex. FED-077); 85 Fed. Reg. 86835 (Dec. 31, 2020) (Ex. FED-078); Ex. FED-079 (June 11, 2021); Notice of Designation of Scarce Materials, 85 Fed. Reg. 17592 (Mar. 30, 2020) (Ex. FED-074); Ex. ECO-A-070 (Feb. 1, 2021); Ex. ECO-A-071 (July 7, 2021, to Nov. 15, 2021). ↩
  10. FFCRA, Pub. L. 116-127, 134 Stat. 178, divs. C and E (Ex. FED-170); 85 Fed. Reg. 19326 (Apr. 6, 2020) (Ex. ECO-B-002); 85 Fed. Reg. 57677 (Sept. 16, 2020) (Ex. ECO-B-003) (narrowing the "health care provider" exclusion after New York v. U.S. Dep't of Labor, 477 F. Supp. 3d 1 (S.D.N.Y. 2020), as the revised rule's preamble recites at 85 Fed. Reg. 57680). ↩
  11. Ex. FED-062; Ex. FED-082; 86 Fed. Reg. 32376, 32620-28 (June 21, 2021) (Ex. SEC-01-001; Ex. FED-080) (compliance dates at § 1910.502(s)); Ex. SEC-01-002 (Ex. FED-081); Ex. SEC-01-003 (Ex. FED-083), App. A ("Target Industries for the COVID-19 NEP ... comprised of healthcare industries and the non-healthcare sectors most affected"); Ex. FED-084. ↩
  12. Ex. FED-060 (Executive Order 13991, Jan. 20, 2021); Ex. FED-270 (M-21-15) and Ex. FED-271 (M-21-25); Ex. FED-272 (Model Safety Principles, July 29, 2021); Ex. FED-278 (Certification of Vaccination form, Aug. 2021); Ex. SEC-01-016 (Ex. FED-063) (Executive Order 14042, § 2); Ex. FED-275 (OMB determination, Sept. 24, 2021); Ex. FED-274 (Task Force contractor guidance, Sept. 24, 2021); Ex. FED-064 (Executive Order 14043); Ex. ECO-B-089 (the Department of Veterans Affairs' release of July 26, 2021); Ex. AGY-FED-HEALTH-OTHER-069; Ex. AGY-FED-HEALTH-OTHER-070; Ex. FED-280 (Secretary of Defense memorandum, Mar. 15, 2021). The Department of Defense's elective-procedure postponement of March 31, 2020 and its TRICARE network guidance are held in the Library's agency records for the Department of Defense and the National Guard. ↩
  13. CMS-3414-IFC, 86 Fed. Reg. 26306 (May 13, 2021, effective May 21, 2021) (Ex. FED-094); QSO-21-19-NH (Ex. FED-163); Ex. SEC-01-020 (Aug. 18, 2021); Ex. SEC-01-017 (Sept. 9, 2021) ("emergency regulations requiring vaccinations for nursing home workers will be expanded to include hospitals"); CMS-3415-IFC, 86 Fed. Reg. 61555 (Nov. 5, 2021) (Ex. SEC-01-018) (post-period). ↩
  14. Ex. FED-200; Ex. FED-201; Ex. FED-210; Ex. FED-214 (Proclamation 10149, 86 Fed. Reg. 11847 (Mar. 1, 2021), revoking Proclamation 10014 effective Feb. 24, 2021); Ex. FED-211; Ex. FED-207; Ex. FED-208; Ex. FED-209 (Proclamation 10294, effective Nov. 8, 2021, cited for the revocation date only); Ex. FED-232; Ex. FED-233; Ex. FED-234; Ex. FED-235; Ex. FED-255; Ex. FED-256; Ex. FED-257; Ex. FED-258; Ex. FED-034; Ex. FED-037; Ex. FED-038; Ex. FED-042; CDC Order, Requirement for Persons To Wear Masks While on Conveyances and at Transportation Hubs, 86 Fed. Reg. 8025 (Feb. 3, 2021, effective Feb. 1, 2021) (Ex. FED-020); TSA SD 1582/84-21-01 (Ex. FED-050), -01A (Ex. FED-051), -01B (Ex. FED-052); Ex. FED-056; Ex. FED-057; Executive Order 13998 (Ex. FED-061). ↩
  15. Ex. NY-005 (Ex. SEC-01-040); Ex. NY-019 (Ex. SEC-01-041); Ex. NY-071 (Ex. SEC-01-070); Ex. NY-073 (Commissioner's Determination on Indoor Masking Pursuant to 10 NYCRR 2.60, Aug. 27, 2021); Ex. NY-074 (the companion determination of Aug. 27, 2021 filed under 10 NYCRR 2.61); Ex. NY-078 (Department of Health FAQs for 10 NYCRR § 2.61, Sept. 20, 2021); Ex. NY-135 (10 NYCRR Subpart 66-4, emergency readoption July 30, 2021). The Department of Health's directive of March 25, 2020 requiring fifty percent bed-capacity plans is cited through the Executive Order that commanded it. ↩
  16. Ex. NJ-006 (Ex. SEC-01-042); Ex. NJ-016 (Ex. SEC-01-043) ¶ 2 (resumption "subject to limitations and precautions set forth in policies, which may include but are not limited to Executive Directives, to be issued by the Department of Health"); Ex. NJ-063 (Department of Health memorandum of Mar. 16, 2020 to long-term care facilities: no resident visitors except end-of-life; staff screening; an order on the hospital's discharge destinations); Ex. NJ-066 (Executive Directive 20-013, testing, continued to Jan. 11, 2022); Ex. NJ-067 (guidance for hospitals to resume elective surgery, May 19, 2020); Ex. NJ-071 (ED 20-017); Ex. NJ-074 (ED 20-026, continued to Jan. 11, 2022 by P.L. 2021, c. 103, § 3(a)); Ex. NJ-078 (ED 21-001); Ex. NJ-084 (ED 20-016); Ex. NJ-085 (ED 20-018); Ex. NJ-056 (Ex. SEC-01-044) (EO 252 ¶¶ 1, 3). ↩
  17. Ex. PA-004 (life-sustaining business list of Mar. 19, 2020: hospitals "Yes - Elective procedures prohibited"); Ex. PA-069 (memorandum to acute care hospital chief executives, Nov. 17, 2020); Ex. PA-025 (Ex. SEC-01-093) ¶¶ A-D; Ex. PA-044 (Ex. SEC-01-094) (Jan. 27, 2021 amendment adding the federal reporting fields and "Number of employees unavailable for work"; the March 24, 2020 order and its July 10, 2020 amendment are recited in it); Ex. PA-041 (Aug. 13, 2021 amendment, effective Aug. 18, 2021); Ex. PA-101 (termination, Aug. 23, 2021). ↩
  18. Ex. MA-057; Ex. SEC-01-071; Ex. MA-060 (May 18, 2020); Ex. MA-061 (June 24, 2020, superseded 12:01 a.m. Dec. 11, 2020 by the Dec. 7, 2020 order); Ex. MA-066 (rescission, Mar. 1, 2021); Ex. MA-050 (May 29, 2021); Ex. MA-067 (Public Health Emergency Order No. 2021-4, Aug. 4, 2021). The December 7, 2020 order (Ex. MA-065) is verified from a secondary source and is cited with the rescission that names it. ↩
  19. Ex. MD-040; Ex. MD-044; Ex. MD-043 (Governor's nursing-home order of Apr. 29, 2020, rescinded 11:59 p.m. Aug. 15, 2021); Ex. MD-050 (MDH 2020-12-17-01); MDH 2021-06-15-03 (terminating 11:59 p.m. Dec. 31, 2021); MDH 2021-08-05-01; MDH 2021-08-18-01 (Ex. ECO-B-056); Ex. MD-060 (MDH 2021-09-08-01); Ex. SEC-01-103 (Governor's Executive Order 20-03-23-01). ↩
  20. Ex. CT-064; Ex. CT-059; Ex. CT-060; Ex. CT-052. ↩
  21. Ex. RI-011; Ex. RI-013; Ex. RI-018; Ex. RI-023; Ex. RI-058 (Executive Order 21-91, Aug. 26, 2021); Ex. RI-072 (Ex. SEC-01-085) (216-RICR-20-15-8, effective Aug. 17, 2021, compliance by Oct. 1, 2021); Ex. RI-090 (hospital visitation guidance, July 8, 2020). ↩
  22. Ex. SEC-01-080 (Vermont's postponement order of Mar. 20, 2020); Ex. VT-018; the amended and restated executive order, § 4 (mitigation requirements, June 15, 2020 to June 15, 2021); Ex. VT-095. ↩
  23. Ex. NH-001 ¶ 3 ("Beginning at 11:59 p.m. on Sunday, March 15th, all assisted living facilities, long term care facilities, nursing facilities, residential care facilities ... shall prohibit visitor access"), ¶ 10 (waivers of hospital and health-facility licensing rules "[t]o ensure hospitals and other health facilities are able to adequately treat patients"); Ex. NH-044 (Emergency Order #33, Apr. 17, 2020, activating the Crisis Standards of Care Plan); Ex. NH-051 (New Hampshire Hospital Association, Guiding Principles for Responsibly Resuming Health Care Services, adopted as State reopening guidance May 4, 2020; binding under the Governor's emergency orders until the universal guidelines became recommendations on May 7, 2021). ↩
  24. 10-144 C.M.R. ch. 264, emergency rule adopted Aug. 12, 2021 (filing 2021-166); Does 1-6 v. Mills, 16 F.4th 20 (1st Cir. Oct. 19, 2021) (Ex. ME-062; Ex. SEC-01-111) (describing the rule; a post-period opinion cited as a public record describing the rule, not as an instrument in force); Maine Department of Health and Human Services, notice of Sept. 2, 2021 (deferring enforcement to Oct. 29, 2021). ↩
  25. Ex. DE-062 (16 DE Admin. Code 4407 § 6.0, effective July 1, 2021); Ex. DE-047 (§§ 6.4-6.5, effective Sept. 30, 2021); Ex. DE-046; Ex. DE-055; Ex. DE-064 (announcement, Aug. 12, 2021); Ex. DE-044 (Emergency Secretary's Order amending 16 Del. Admin. C. § 4202 § 7.7, Aug. 13, 2021, effective Aug. 16, 2021: universal masking, as an infection-prevention control, of every student, staff member and visitor in every K-12 school and in State congregate settings); Ex. AGY-ST-HEALTH-SUBORDERS-041. ↩
  26. Ex. SEC-01-116 (DC Health recommendation of Mar. 17, 2020); Ex. DC-037 (Phase One guidance, May 26, 2020, effective May 29); Ex. DC-069 (Phase Two guidance, June 17, 2020, effective June 22, superseded Sept. 29, 2020); Ex. DC-038 (Phase Two guidance of Sept. 29, 2020, in force through the second quarter of 2021); Ex. SEC-04-059 (Mayor's Order 2021-099, Aug. 10, 2021, COVID-19 Vaccination Certification Requirement); Ex. DC-075 (DC Health situational update of Aug. 16, 2021 announcing the Sept. 30, 2021 first-dose deadline for health care workers). ↩
  27. Ex. TX-004 (Ex. SEC-01-045); Ex. TX-009 (Ex. SEC-01-046); Ex. TX-012 (Ex. SEC-01-047); Ex. TX-020 (Ex. SEC-01-048); Ex. TX-024 (Ex. SEC-01-049); Ex. TX-026 (DSHS list of Trauma Service Areas with high hospitalizations under GA-32, as of Jan. 15, 2021); Ex. SEC-01-050 (GA-32); Ex. SEC-01-051 (Ex. ECO-B-040) (GA-38); Ex. SEC-01-052 (GA-39); Ex. TX-001; Ex. TX-038. GA-19 was issued April 27, 2020 and took effect May 1, 2020; GA-31 superseded GA-19 and GA-27 on September 17, 2020, so that the fifteen percent reserve of GA-19 ran from May 1 to September 17, 2020, when GA-31 replaced it with a statewide ten percent reserve ("every hospital that is licensed under Chapter 241 of the Texas Health and Safety Code shall reserve at least 10 percent of its hospital capacity for treatment of COVID-19 patients") that GA-32 left in force ("does not supersede Executive Orders ... GA-31") and that ran until GA-34 took effect at 12:01 a.m. on March 10, 2021. ↩
  28. Ex. FL-009 (Ex. SEC-01-064); Ex. SEC-01-065 (EO 20-112 § 5); Ex. FL-056 (Governor's Executive Order 21-81, Prohibiting COVID-19 Vaccine Passports, Apr. 2, 2021, in force to June 26, 2021); Ex. SEC-01-082 (SB 2006, Fla. Stat. § 381.00316, effective July 1, 2021 as codified, relied on for the third quarter of 2021 only). ↩
  29. Ex. KY-009; Ex. KY-015; Ex. KY-029; Ex. VA-003; Ex. WV-014; Ex. WV-023; Ex. WV-024; Ex. WV-045; Ex. WV-080 (OHFLAC Nursing Home and Assisted Living Reopening Plan, rev. Aug. 21, 2020; in force through the second quarter of 2021); Ex. WV-064 (Executive Order 13-21, Apr. 30, 2021, twice-weekly testing of unvaccinated long-term-care staff, through the period); Ex. SEC-01-073; Ex. SEC-01-074; Ex. TN-019; Ex. TN-052; Ex. SEC-01-075; Ex. AL-005; Ex. AL-011; Ex. AL-024; Ex. AL-034; Ex. AL-045; Alabama's Safer Apart Order of Apr. 7, 2021 (effective 5:00 p.m. Apr. 9, keeping hospital and long-term-care visitation rules mandatory); Ex. AL-051 ¶ 7 (amendment of May 3, 2021, hospital visitation "consistent with the current guidance from the Centers for Medicare and Medicaid Services," expired 11:59 p.m. May 31, 2021); Ex. AL-052; Ex. MS-006; Ex. SEC-01-088 (Executive Order 1470, Apr. 10, 2020: "all licensed health care professionals and all licensed health care facilities shall postpone all surgeries and procedures that are not immediately medically necessary"); Mississippi's Executive Order 1477 (Safer at Home, Apr. 24, 2020, effective Apr. 27); Ex. MS-010 (Executive Order 1471, civil immunity and credentialing, Apr. 10, 2020); Ex. MS-040; Mississippi's Executive Order 1535 (the hospital rule as re-imposed Dec. 11, 2020, to Mar. 3, 2021); Ex. LA-043; Ex. LA-044; Ex. LA-045; Ex. LA-046; Ex. LA-047; Ex. LA-050; Louisiana Department of Insurance, Emergency Rule 46 (effective 12:01 a.m. Aug. 9, 2021); Ex. SEC-01-106; Ex. AR-035; Ex. AR-040; Ex. AR-044; Ex. AR-059; Ex. AR-064; Ex. AR-068; Ex. NC-068; Ex. NC-004 (Executive Order 120, Mar. 23, 2020, long-term-care visitation restricted); Ex. OK-006; Ex. OK-011; Ex. OK-018; Ex. OK-020; Ex. GA-041; Ex. GA-042; Ex. GA-044; Ex. SEC-01-084; Ex. SC-003. The Louisiana Department of Health's notice of March 21, 2020 is cited through the April 20, 2020 order that superseded it (Ex. LA-043). ↩
  30. Ex. OH-007; Ex. OH-027; Ex. OH-009; Ex. OH-036; Ex. OH-075; Ex. OH-049; Ex. OH-071; Ex. OH-072. ↩
  31. Ex. MI-003 (Ex. SEC-01-087); Ex. SEC-01-086 (EO 2020-17); Ex. SEC-01-089 (EO 2020-96); Ex. MI-051; Ex. MI-055; the MDHHS order of May 21, 2021 (in force through the third quarter of 2021). EO 2020-7's successors, each titled "Temporary restrictions on entry into health care facilities, residential care facilities, congregate care facilities, and juvenile justice facilities" and each rescinding its predecessor, were EO 2020-37 (Apr. 5, 2020, filed Apr. 6), 2020-72 (May 3, filed May 4), 2020-108 (filed June 1), 2020-136 (June 26), 2020-156 (filed July 24, continuing the restrictions until August 31) and 2020-174 (Aug. 27, filed Aug. 28, 2020, continuing them until September 30); the Michigan Supreme Court's decision of October 2, 2020 reached the Governor's orders only, and the MDHHS orders that followed rest on Mich. Comp. Laws § 333.2253. ↩
  32. Ex. IN-003; Ex. IN-011; Ex. IN-022; Ex. IN-048; Ex. SEC-01-095 (IDPH guidance of Apr. 24, 2020); Ex. SEC-01-078 (Illinois Executive Order 2021-20); Ex. SEC-01-079 (Executive Order 2021-22). ↩
  33. Ex. SEC-01-066 (Minnesota Emergency Executive Order 20-09); Minnesota's inventory and reporting order of Mar. 25, 2020; Ex. SEC-01-067 (Minnesota Executive Order 20-51); Iowa's Proclamation of Disaster Emergency prohibiting nonessential surgeries from Mar. 27, 2020; Ex. IA-011; Iowa's proclamation limiting surgeries from Nov. 17, 2020 and its continuations of Dec. 10 and 17 (Ex. IA-032; Ex. IA-033); the proclamation ending the surgical limits Feb. 7, 2021; Ex. IA-041; Ex. SEC-01-107; Ex. NE-023 (Phased Public Health Restrictions Tied to Coronavirus Hospitalization Rate, Nov. 13, 2020); Ex. NE-050 (Executive Order 20-12, Coronavirus - Relief for Hospitals & Health Care Facilities and Expanded Use of Telehealth Services, Mar. 31, 2020: the 96-hour average-stay and 25-bed limits on critical access hospitals, the same-day-discharge and no-overnight-stay rules for ambulatory surgical centers and the telehealth restrictions suspended; in force to 11:59 p.m. Aug. 27, 2021); Ex. NE-067 (Executive Order 21-09, ending the state of emergency at 11:59 p.m. June 30, 2021 and Executive Order 20-12 on Aug. 27, 2021); Ex. NE-068 (Executive Order 21-12, Aug. 26, 2021: "do hereby declare a hospital capacity emergency exists"; licensing, continuing-competency, training and credentialing rules suspended or deferred to Dec. 31, 2021). ↩
  34. Ex. WI-002; Missouri's and Kansas's stay-at-home orders of the spring of 2020; Ex. ND-004; Ex. ND-020; Ex. ND-048; Ex. SD-005; Ex. SD-009. ↩
  35. California's Hospital Surge Public Health Order of Dec. 17, 2020, re-issued Jan. 5, 2021 (Ex. CA-026); Ex. CA-031 (Ex. SEC-01-059; Ex. ECO-B-084); Ex. CA-030 (Ex. SEC-01-058; Ex. ECO-B-083); Ex. SEC-01-060 (Aug. 5, 2021 visitor order); Ex. CA-038; Cal/OSHA COVID-19 Prevention emergency temporary standard (approved text effective Nov. 30, 2020; readoption approved text of June 17, 2021); Ex. AGY-ST-HEALTH-SUBORDERS-092; Ex. AGY-ST-HEALTH-SUBORDERS-110. ↩
  36. Ex. WA-015 (Ex. SEC-01-053); Ex. WA-032 (Proclamation 20-24.1); Ex. WA-049 (Proclamation 20-24.2, effective 12:01 a.m. Dec. 3, 2020); Ex. WA-077 (Ex. SEC-01-055); Ex. WA-079 (Ex. SEC-01-056); Ex. WA-087 (Ex. SEC-01-109); Ex. WA-002 and Ex. WA-012 (Proclamations 20-06 and 20-16, long-term-care visitation); Ex. WA-023 (Proclamation 20-32, licensing waivers, extended through the period); Ex. WA-043 and Ex. WA-057 (Proclamation 20-66 series); Ex. WA-078 (Secretary of Health Order 20-03.4, Aug. 23, 2021); Tri-State at 4-5 (Proclamation 20-24.2). ↩
  37. Ex. SEC-01-068 (Oregon Executive Order 20-10); Ex. SEC-01-069 (Executive Order 20-22, rescinded as of June 30, 2021 by EO 21-15 ¶ 3); Ex. OR-046 (OAR 333-019-1010, PH 34-2021, Aug. 5, 2021); Ex. OR-051 (PH 38-2021, Aug. 25, 2021, documentation of full compliance by Oct. 18, 2021); Ex. SEC-01-110 (OAR 333-019-1011); Oregon OSHA Administrative Order 3-2020 (temporary rule OAR 437-001-0744, Nov. 6, 2020, effective Nov. 16, 2020), Administrative Order 2-2021 (permanent rule, May 4, 2021) and Administrative Order 10-2021 (renewed masking, Aug. 13, 2021). ↩
  38. Ex. AZ-004 (Ex. SEC-01-061); Ex. AZ-008 (Executive Order 2020-16, Mar. 26, 2020); Ex. AZ-015; Colorado's executive order suspending voluntary and elective procedures from Mar. 23, 2020; Ex. SEC-01-090 (permitting resumption from Apr. 27, 2020); Public Health Order 20-29 and its amendments through the Thirteenth Amended order of Apr. 9, 2021; Ex. CO-002; Ex. CO-055 (6 CCR 1011-1, ch. 2, pt. 12, emergency rule of Aug. 30, 2021); Ex. CO-091. ↩
  39. Ex. NM-007; Ex. NM-013; Ex. NM-043; Ex. NM-002; New Mexico's indoor face-covering order (from Aug. 20, 2021); Ex. NM-068 (Public Health Emergency Order of Aug. 17, 2021, ¶¶ 3, 5); Ex. NM-071 (Amended Public Health Emergency Order of Sept. 15, 2021); Utah Department of Health, State Public Health Orders of Mar. 23 and Apr. 21, 2020; Ex. UT-028; Ex. NV-013; Ex. NV-040 (Declaration of Emergency Directive 046, July 20, 2021); Ex. NV-041 (Directive 047); Nevada OSHA updated guidance under Directive 047 (July 30, 2021); Ex. NV-056 (State Board of Health emergency regulation, Sept. 10, 2021); Ex. NV-057; Ex. ID-071; Ex. ID-030 (Executive Order 2021-11, Aug. 31, 2021, activating the Idaho National Guard); Ex. ID-062 (Governor's release, Aug. 31, 2021); Ex. ID-052; Ex. ID-064; Ex. SEC-01-100; Ex. ID-072; Ex. ID-067 (Governor's release, Sept. 21, 2021); Ex. AK-003 (Health Mandate 001, visitation at State institutions from Mar. 14, 2020); Ex. AK-007 (Health Mandate 005, Mar. 19, 2020, revised Apr. 7, 2020 by Attachment C); Ex. AK-017 (Health Mandate 015 as revised June 1, 2020; Section I effective Apr. 20 and Section II May 4, 2020; expired Nov. 15, 2020); Ex. AK-031; Ex. AK-092; Ex. MT-003; Ex. MT-006; Ex. MT-034; Ex. MT-035; Ex. SEC-01-081 (House Bill 702); Hawaii Executive Order 21-06 (Sept. 1, 2021); Ex. HI-027; Ex. WY-011. ↩
  40. The end-date and preemption history of each State is stated in the Library's State records; the vaccination and anti-mandate instruments of the third quarter of 2021 are stated with dates in the quarters section. ↩
  41. Ex. MET-SAN-002 (order of Mar. 12, 2020 as amended Mar. 16: non-essential personnel barred from every hospital; hospitals to delay elective procedures); Ex. MET-SAN-003 (order effective Mar. 29, 2020); Ex. MET-SAN-022 (Limited Order effective June 15, 2021); Ex. MET-SAN-023 (Isolation Order, Dec. 24, 2020); Ex. MET-SAN-024 (Quarantine Order as revised July 22, 2021, with return-to-work conditions for health care workers). ↩
  42. Ex. MET-DEN-023 (Aug. 2, 2021) (personnel of "care facilities, hospitals, clinical settings, limited health care settings" and their onsite contractors "to be fully vaccinated by September 30, 2021"); Ex. MET-DEN-025 (Sept. 1, 2021 amendment). ↩
  43. Ex. MET-RIV-006 ¶ 1.n, 1.o; Ex. MET-RIV-022; Ex. MET-RIV-027 (updated licensed-facilities order, May 8, 2020, in force to June 15, 2021); Ex. MET-RIV-023 ¶ 8; Ex. MET-RIV-024 ¶ 9; Ex. MET-RIV-031; Ex. MET-PHL-021; Ex. MET-PHL-022; Ex. MET-NYC-035; Ex. MET-SFO-008 § 6; Ex. MET-SFO-037; Ex. MET-MSP-008; Ex. MET-MSP-012; Ex. MET-DET-001 at 11-12; Ex. MET-DET-014; Ex. MET-DET-032; Ex. MET-SAT-009; Ex. MET-SAT-035; Ex. MET-SAT-051; Ex. MET-SAT-052; Ex. MET-STL-056; Ex. MET-STL-083; Ex. MET-STL-067; Ex. MET-STL-098; Ex. MET-SEA-004; Ex. MET-SEA-050; Ex. MET-SEA-048; Ex. MET-IND-093; Ex. MET-IND-035; Ex. MET-MSY-027; Ex. MET-BAL-017; Ex. MET-CMH-048 § 2(e)-(f); Ex. MET-ORL-013 (recitals). ↩
  44. Virginia's 16VAC25-220 (emergency temporary standard adopted July 15, effective July 27, 2020; permanent standard Jan. 13, effective Jan. 27, 2021; amended standard effective Sept. 8, 2021); Ex. AGY-ST-LABOR-WORKPLACE-001; Ex. AGY-ST-LABOR-WORKPLACE-043; MIOSHA emergency rules of Oct. 14, 2020; Ex. AGY-ST-LABOR-WORKPLACE-062 (the MIOSHA rules as amended and refiled May 24, 2021); Oregon OSHA Administrative Orders 3-2020, 2-2021 and 10-2021 (OAR 437-001-0744); Ex. AGY-ST-LABOR-WORKPLACE-018 (AO 4-2020, refiling of OAR 437-001-0744); Ex. AGY-ST-LABOR-WORKPLACE-021 (AO 12-2021, Sept. 14, 2021); Cal/OSHA's COVID-19 Prevention standard (effective Nov. 30, 2020; readopted June 17, 2021); Ex. AGY-ST-LABOR-WORKPLACE-002 (Cal/OSHA Standards Board finding of emergency); Ex. AGY-ST-LABOR-WORKPLACE-050; Ex. AGY-ST-LABOR-WORKPLACE-054; Ex. AGY-ST-LABOR-WORKPLACE-055; Ex. AGY-ST-LABOR-WORKPLACE-056; Ex. AGY-ST-LABOR-WORKPLACE-040 (Nevada OSHA, Updated COVID-19 Guidance for Nevada Businesses and New OSHA COVID-19 Healthcare Emergency Temporary Standard, June 24, 2021; the federal Healthcare ETS effective in Nevada July 1, 2021; superseded July 30, 2021 by Nevada OSHA's updated guidance under Directive 047). ↩
  45. The Library's agency records for the State health boards hold the pharmacy, medical and nursing board emergency rules. ↩
  46. Ex. AZ-068 (Navajo Nation Public Health Emergency Order No. 2020-021); Ex. OK-090 (Cherokee Nation Executive Order 2021-01-CTH); Ex. AGY-TRIBAL-020; Ex. AGY-TERRITORIES-033 (Puerto Rico OE-2021-062, Aug. 16, 2021); see I.R.C. § 3121(e); Notice 2021-20, Q&A-4 (tribal and territorial governments as appropriate governmental authorities). ↩
  47. Ex. FED-156 (QSO-20-39-NH as revised Apr. 27, 2021, in force throughout the third quarter of 2021); Ex. FED-161; Ex. FED-168; Ex. FED-091 (42 C.F.R. § 483.80(g)); Ex. FED-094; Ex. FED-163; Ex. NH-001 ¶ 3 (visitors prohibited at every assisted living, long-term care, nursing and residential care facility from 11:59 p.m. Mar. 15, 2020); Ex. NJ-063 (Department of Health memorandum of Mar. 16, 2020: "No resident visitors shall be permitted in the facility except for end-of-life situations"); Ex. NJ-064 (hospital discharges and admissions to post-acute settings, Mar. 31, 2020); the Michigan MDHHS order of May 21, 2021; Ex. LA-050; Ex. AR-068; Ex. OH-049; Ex. OH-071; Ex. NM-002; Ex. TN-052; Ex. MT-035; Ex. ID-051; Ex. CO-002; Ex. WV-080 (rev. Aug. 21, 2020; in force through the second quarter of 2021); Ex. WV-064 (through the third quarter of 2021). ↩
  48. Ex. FED-098 (QSO-20-18-HHA, home health agencies); Ex. ECO-C-031 (Chicago Emergency Travel Order, July 6, 2020); Ex. HI-003 (Hawaii's traveler quarantine, Second Supplementary Proclamation, continued through the period). ↩
  49. The Library's standing-duties collection (one record set per jurisdiction and one for the federal layer; exhibits prefixed DUT-). Every instrument's character is stated as its text has it: a "shall," a "must" or an offense provision is a duty; a "should," an "encouraged" or a "recommends" is a recommendation, treated as compulsory only through the instrument that incorporated it. Where a statute commands officials rather than persons, it is treated as the machinery that made the orders compulsory; a court's decision upholding the orders is cited as an adjudication and not as a duty. ↩
  50. CARES Act § 2301(c)(2)(A)(ii)(I); I.R.C. § 3134(c)(2)(A)(ii)(I) (the source and addressee of the order are irrelevant; "appropriate governmental authority"); Tri-State at 17-19. ↩
  51. The force-of-law and penalty provisions behind the operating conditions: Tex. Gov't Code § 418.173 (Ex. DUT-TX-012) (a fine to $1,000 and confinement to 180 days); N.J.S.A. App. A:9-45, A:9-49 (Ex. DUT-NJ-006) (orders "binding upon each and every person within this State"; violation a disorderly-persons offense, six months or $1,000); RCW 43.06.220(5) (Ex. LAW-340) (gross misdemeanor), exercised under the emergency power of RCW 43.06.010(12) (Ex. DUT-WA-008); WAC 296-800-14035 (Ex. AGY-ST-LABOR-WORKPLACE-078), the rule the Ninth Circuit described as "an enforcement mechanism for the proclamations' restrictions on businesses" in Slidewaters LLC v. Washington State Department of Labor & Industries, No. 20-35634, slip op. (9th Cir. July 8, 2021) (Ex. DUT-WA-020); N.Y. Pub. Health Law § 12-b(2) (Ex. DUT-NY-002); R.C. 3701.352 and 3701.99(C) (Ex. DUT-OH-004; Ex. DUT-OH-005) (a second-degree misdemeanor, ninety days and $750), recited in the Director's orders from April 2, 2020 (Ex. OH-014); Fla. Stat. § 252.50 (Ex. DUT-FL-008) (a second-degree misdemeanor, sixty days and $500) and § 252.47 (Ex. DUT-FL-007) (the law enforcement authorities "shall enforce" the orders); N.H. RSA 21-P:47 (Ex. DUT-NH-010) (misdemeanor). The elective-procedure and resumption orders are cited with their dates in the State-by-State treatment above. ↩
  52. Tex. Health & Safety Code § 81.002 (Ex. DUT-TX-001) (Acts 1989, 71st Leg., ch. 678, § 1; never amended); §§ 81.081, 81.082 (Ex. DUT-TX-002) (control measures "may be imposed on an individual, animal, place, or object"); § 81.083 (Ex. DUT-TX-003) and § 81.084 (Ex. DUT-TX-004), the control-measure powers under which the orders on individuals, groups and premises issued; § 81.085(h) (Ex. DUT-TX-005); § 81.087 (Ex. DUT-TX-006) (refusal to perform or allow a control measure is an offense); § 121.024 (Ex. DUT-TX-007) (the health authority "shall perform each duty that is necessary to implement and enforce a law to protect the public health"); Tex. Lab. Code § 411.103 (Ex. DUT-TX-013); the sanitary code enforced by summary closure, §§ 341.011, 341.091 and 437.0145 (Ex. DUT-TX-016; Ex. DUT-TX-017; Ex. DUT-TX-018); Penal Code §§ 12.22, 12.23, 12.34 (Ex. DUT-TX-019) (the punishment ranges). The Department of State Health Services' declaration of public health disaster of March 19, 2020 invoked § 81.002 in terms (Ex. DUT-TX-008, the Department's release, which quotes it). ↩
  53. New York: Pub. Health Law § 12 (Ex. DUT-NY-001) (a civil penalty to $2,000 for every violation), § 12-b (Ex. DUT-NY-002), § 2100 (Ex. DUT-NY-007) (every local board and health officer "shall guard against the introduction of such communicable diseases"), Labor Law § 200 (Ex. DUT-NY-013), Labor Law § 218-b (Ex. DUT-NY-014) (the HERO Act; plans required within thirty days of the July 6, 2021 model standards and activated September 6, 2021), 10 NYCRR Subpart 66-3 ("Businesses must provide, at their expense, such face coverings for their employees"), 29 U.S.C. § 654 (Ex. DUT-NY-017). Ohio: R.C. 3701.352 (Ex. DUT-OH-004), 3701.99(C) (Ex. DUT-OH-005), 3701.81(C) (Ex. DUT-OH-007) (version effective January 1, 1974), 4101.11 (Ex. DUT-OH-013). Washington: RCW 70.05.120(4) (Ex. DUT-WA-002), WAC 246-101-425 (Ex. DUT-WA-007), RCW 43.06.220(5) (Ex. LAW-340) (gross misdemeanor), exercised under the emergency power of RCW 43.06.010(12) (Ex. DUT-WA-008), RCW 49.17.060 (Ex. DUT-WA-010). New Jersey: N.J.S.A. 26:1A-9 (Ex. DUT-NJ-004), App. A:9-45, A:9-49 (Ex. DUT-NJ-006), 34:6A-3 (Ex. DUT-NJ-009), N.J.A.C. 8:57-1.11 (Ex. DUT-NJ-012). Florida: Fla. Stat. § 381.00315 (Ex. DUT-FL-001), § 252.47 (Ex. DUT-FL-007), § 252.50 (Ex. DUT-FL-008), 29 U.S.C. § 654 (Ex. DUT-FL-015). New Hampshire: RSA 141-C:21 (Ex. DUT-NH-006), RSA 21-P:47 (Ex. DUT-NH-010), RSA 281-A:64 (Ex. DUT-NH-011), He-P 301.05 (Ex. DUT-NH-020). Each statute's text was in force on every day from March 2020 through September 2021, as the Library's duties records state; where a State-plan or COVID-19 workplace rule took effect inside the period (New York's HERO Act; Washington's WAC 296-800-14035 from May 26, 2020), the date is stated. ↩
  54. 29 U.S.C. § 654(a)(1)-(2) (Ex. DUT-FED-001); OSHA's enforcement plan of April 13, 2020, instructing inspectors to cite under § 5(a)(1) against the CDC's guidelines and attaching a sample citation (Ex. AGY-FED-LABOR-IMMIGRATION-020); the general-duty citations of September 2020 (Ex. LAW-487; Ex. LAW-488; Ex. AGY-FED-LABOR-IMMIGRATION-031; Ex. AGY-FED-LABOR-IMMIGRATION-095); citations from 300 inspections with proposed penalties of $3,930,381 by December 31, 2020 (Ex. DUT-FED-067); the Review Commission's decision of June 6, 2022 affirming a willful violation of § 5(a)(1) against a tax office whose owner forbade face coverings and distancing, the recognized hazard being the virus and the refused abatement being face coverings, distancing and ventilation (Ex. DUT-FED-073); the Healthcare Emergency Temporary Standard, 29 C.F.R. § 1910.502 (Ex. SEC-01-001; Ex. FED-080); Office of Chief Counsel, IRS, Mem. AM 2023-007 (Oct. 18, 2023) (Ex. GOV-004) (the Office of Chief Counsel's recital of § 654(a)(1)); 42 C.F.R. § 482.42 (Ex. DUT-FED-024) (the condition of participation under which every hospital "must have active hospital-wide programs for the surveillance, prevention, and control" of infectious disease) and § 483.80(a) (Ex. DUT-FED-023) (every nursing facility "must establish and maintain an infection prevention and control program"), enforced by civil money penalties and termination (Ex. FED-165; Ex. SEC-01-004). ↩
  55. Tex. Civ. Prac. & Rem. Code § 148.003(a)(1)(B) (Ex. DUT-TX-015), added by S.B. 6, Act of June 14, 2021, 87th Leg., R.S., ch. 528, whose § 5(a) applies chapter 148 "only to an action commenced on or after March 13, 2020" (Ex. DUT-TX-014); Fla. Stat. § 768.38, ch. 2021-1, Laws of Fla. (Mar. 29, 2021), applying "retroactively and prospectively" (Ex. DUT-FL-012); N.Y. Pub. Health Law art. 30-D, as amended by ch. 134 of 2020 (Ex. DUT-NY-016), repealed by ch. 96 of 2021 effective April 6, 2021 (Ex. DUT-NY-018); N.J. P.L. 2020, c. 18 (Apr. 14, 2020; retroactive to Mar. 9, 2020) (Ex. DUT-NJ-007); N.H. RSA 21-P:41 (Ex. DUT-NH-014) and RSA 21-P:42-a (eff. July 30, 2021) (Ex. DUT-NH-013); Am. Sub. H.B. 606, 133rd Ohio Gen. Assemb. (Ex. DUT-OH-020), whose immunity yields only to reckless, intentional or willful or wanton conduct and which is cited for what its text says; RCW 5.40.050 (Ex. DUT-WA-013). ↩
  56. The CMS recommendations of March 18, April 7 and April 19, 2020 and the State orders incorporating them (Ex. SEC-01-007; Ex. SEC-01-008; Ex. SEC-01-009; Utah's order of March 23, 2020; Ex. AZ-015), as stated in the federal layer above and in the answer to the "guidance" position below; QSO-20-13-Hospitals and QSO-20-14-NH, written in "should" (Ex. SEC-01-006; Ex. FED-096; Ex. FED-097), enforced under the infection-control conditions of participation through QSO-20-31 and its enhanced enforcement (Ex. FED-165); OSHA's enforcement plan (Ex. AGY-FED-LABOR-IMMIGRATION-020). Texas restated its general employer conditions as recommendations from March 10, 2021 (Executive Order GA-34); after that date the compulsion in Texas rests on the standing statutes, the shield's condition, the federal layer and the hospital-specific orders in force after that date, which are cited with their own dates in the quarters section. ↩