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The COVID Project

Industry 11 of 27 · The orders by layer

Logistics, Warehousing and Wholesale

Federal, State, metro, sector regulator, standing duty and counterparty: the instruments that reached this industry, layer by layer, with exhibit links.

DSdispatch and brokerageDRdrivers and routesWHwarehouse and dockMTmaintenanceCScustomer facilitiesPTports, rail and air cargoHRhiring, CDL testing and DMVOPoffice, administration and…WFworkforce availabilityCBthe customer base
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The Governmental Orders by Layer

Seven layers of orders reached this industry: the federal government's, the fifty States' and the District's, the largest metros', the industry's own sector regulators', the counterparties' regulators', the ecosystem's and, beneath all of them, the customer-side orders of every other industry. Each layer is an order "from an appropriate governmental authority limiting commerce, travel, or group meetings"; each is in the Library under the exhibit identifier cited; and in each of the six quarters at least three layers were in force on every day.

The universe

By the CDC's count, forty-two States and territories issued mandatory stay-at-home orders between March 1 and May 31, 2020, reaching 2,355 of the nation's 3,233 counties.18 The Council of State Governments and Ballotpedia counted 2,065 gubernatorial executive orders on COVID-19 by June 29, 2020; the COVID AMP dataset records more than 20,000 policy instruments; the Department of Health and Human Services' policy-orders dataset records 4,218 State and county orders.19 On July 2, 2021 thirty-five States had emergency declarations in force (the Kaiser Family Foundation's count) and nine had statewide mask requirements; on September 21, 2021 twenty-five States had emergency declarations and eleven had statewide mask requirements.20 The third-quarter inventory below states the State emergencies by exhibit, issuer and date. The Library's own counts are stated on its pages as instruments indexed by The COVID Project, never as a count of the orders that reached any employer, and each exhibit is cited for what it says.

The federal layer

2020

The President's national emergency of March 13, 2020 was the predicate; the orders followed within days. The Department of Homeland Security limited every land port of entry with Canada and Mexico to "essential travel" from 11:59 p.m. March 20, 2020, publishing the notices on March 24 and renewing them every month through the period; the notices named "truck drivers supporting the movement of cargo" as one category of essential travel and forbade every other.21 The President invoked the Defense Production Act on March 18, 23 and 27, 2020, giving the Secretary of Health and Human Services priority and allocation authority over "all health and medical resources," and on April 28, 2020 over meat and poultry processors; the Secretary designated respirators, masks, gloves, gowns, ventilators and disinfectants scarce materials whose hoarding was a federal crime from March 25, 2020, a designation extended to November 15, 2021; and the Federal Emergency Management Agency ordered Customs and Border Protection to detain exports of those materials from April 7, 2020 to June 30, 2021.22 The Cybersecurity and Infrastructure Security Agency published the "Essential Critical Infrastructure Workforce" guidance on March 19, 2020 that nearly every State incorporated into its closure order, naming the industry's truck drivers, dispatchers, warehouse workers, mechanics, truck-stop workers and motor-vehicle office workers.23 The Federal Motor Carrier Safety Administration declared a national emergency under 49 C.F.R. § 390.23 on March 13, 2020 and extended it, by its own recitals, on June 15, August 15 and December 1, 2020, in February 2021, on May 26, 2021 (through August 31, 2021), August 31, 2021 and November 29, 2021, and into 2022; this analysis relies on the declaration only as the regulator's finding, renewed for thirty-one months, that the national emergency reached every commercial motor vehicle operation, and never as a limitation.24 The Coast Guard's Marine Safety Information Bulletins, cited on this page as the regulator's record of the maritime regime and never as orders, identified the "essential maritime critical infrastructure workers" exempted from State shelter orders (MSIB 11-20, March 27, 2020), stated the vessel-reporting and facility-security requirements of 33 C.F.R. §§ 160.216 and 105.125 and the Captains of the Port's orders as applied to COVID-19 (MSIB 07-20, Change 2, May 7, 2020), and announced the extension of mariner credentials (MSIB 08-20, Change 5, December 22, 2020, to October 31, 2021).25 The Department of Transportation's drug-and-alcohol testing office recorded in its statement of April 4, 2020 that collection sites were closed and service agents limited, and continued the statement by updates through the version of May 27, 2021, effective through December 31, 2021; the statements are cited as the Department's record of those limitations and not as orders.26 The Families First Coronavirus Response Act compelled paid leave from April 1 to December 31, 2020 for every employee under a quarantine order or caring for a child whose school an order had closed.27 The Centers for Disease Control and Prevention's Title 42 order of October 13, 2020 suspended the introduction of covered noncitizens at the land borders.28

2021, first and second quarters

The CDC's conveyance order imposed an airborne-transmission control on every conveyance and "at any transportation hub": a mask on every person from 11:59 p.m. February 1, 2021, "until further notice," with a duty on every operator to require it, defining the hub to include every "seaport or other port" and every "U.S. port of entry" and excepting a commercial motor vehicle only "if the driver is the sole occupant of the vehicle"; the Transportation Security Administration issued Security Directive 1582/84-21-01 for surface operators on January 31, 2021, effective with the order (Ex. FED-050), and announced -01A on April 30, 2021 (effective May 12; in force to September 13, 2021), and the Transportation Security Oversight Board ratified the aviation directives on April 20, 2021.29 The Coast Guard's Captains of the Port implemented the order on every commercial vessel and, from March 22, 2021, at every sea port through Marine Safety Information Bulletin 02-21 and its Change 1, re-issued June 11, 2021 as Change 2; the Coast Guard's bulletins of the period also recorded the crew-change conditions (MSIB 04-21, March 17, 2021), TWIC enforcement discretion to January 1, 2022 (MSIB 13-20, Change 3, April 21, 2021) and the current vessel-reporting requirement (MSIB 02-20, Change 7, May 5, 2021); each bulletin is cited as evidence of the regime and of the order it implemented, not as an order.30 The Federal Railroad Administration issued Emergency Order No. 32 on February 26, 2021, requiring the same airborne-transmission control, a mask, in "all freight rail operations," and kept it in force through the period.31 Proclamations 10143 (January 25, 2021) and 10199 (April 30, 2021) suspended the entry of noncitizens present in the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa and India; the CDC's pre-departure testing order governed every arriving air passenger from January 26, 2021; the land-border notices were renewed on January 19, February 23, March 19, April 22, May 24 and June 23, 2021.32 OSHA issued its National Emphasis Program for COVID-19 on March 12, 2021 and its Healthcare Emergency Temporary Standard on June 21, 2021.33 The Department of Transportation held air carriers to minimum service obligations to September 30, 2021, and the FAA extended the exemptions permitting cargo in passenger cabins to December 31, 2021.34 The Secretary of Health and Human Services extended the scarce-materials designation on February 1, 2021.35

2021, third quarter

The six-quarter section below states the quarter in full: the conveyance order and Security Directives -01A and -01B, the Coast Guard's Changes 2 and 3 implementing the order at every sea port, the FRA order, the land-border notices of June 23, July 22, August 23 and September 22, the entry proclamations to November 8, 2021, the Title 42 orders of October 13, 2020 and August 2, 2021, OSHA's revised National Emphasis Program naming general warehousing from July 7, 2021, the Healthcare ETS as the rule at every hospital and nursing-home dock, the Safer Federal Workforce Task Force's Model Safety Principles of July 29, 2021 for every onsite contractor, Executive Orders 14042 and 14043 of September 9, 2021, and the public health emergency renewed July 19, 2021.36

The fifty States

The stay-at-home and closure layer

Every State but eight (Arkansas, Iowa, Nebraska, North Dakota, South Dakota, Oklahoma, Utah and Wyoming) and the District of Columbia ordered residents home and closed non-essential workplaces between March 19 and April 7, 2020, and those eight closed sectors by order in the same weeks.37 For this industry the closure orders did three things at once. They treated trucking, warehousing and wholesale as critical infrastructure permitted to operate under conditions, nearly always by incorporating the CISA list; Pennsylvania's list did so line by line and ordered five wholesale lines to cease physical operations; New York closed every non-essential wholesale workplace to in-person work from March 22, 2020.38 They closed the industry's customers: every dine-in room, every non-essential store, every non-essential construction site in New York, Pennsylvania, New Jersey, Michigan, Washington and the Boston and Bay Area metros, and every non-essential plant in Michigan, Pennsylvania, New York, New Jersey, Minnesota and Washington.39 And they confined the public, who were the industry's receivers' customers. The reopening orders that followed set percentage caps and sector protocols that governed the receiving docks through the spring of 2021.

The workplace-condition layer

The orders that governed the industry's own floors were the workplace rules: New Jersey's Executive Order 122 (eleven mandatory requirements for "warehousing businesses" from April 10, 2020) and Executive Order 192 (November 5, 2020 to June 4, 2021); New York's mandatory Interim Guidance for Wholesale Trade and its Executive Order 202.16 requiring masks of every essential employee in contact with the public from April 15, 2020; Ohio's mandatory Manufacturing, Distribution & Construction sheet from May 4, 2020 to June 2, 2021; Minnesota's COVID-19 Preparedness Plans required of every business from April 27 and May 18, 2020 through June 30, 2021; Pennsylvania's Worker Safety Order from April 19, 2020 and its face-covering order of July 1, 2020; Kentucky's Healthy at Work Minimum Requirements from May 9, 2020 and its Manufacturing, Distribution and Supply Chain requirements from May 11, 2020; Massachusetts' Mandatory Workplace Safety Standards from May 18, 2020 to May 29, 2021; Illinois' Executive Order 2020-32 duties on every "Essential Business and Operation" permitted to remain open; Virginia's occupational standard 16VAC25-220 from July 27, 2020 (permanent from January 27, 2021; amended September 8, 2021); Michigan's MIOSHA emergency rules from October 14, 2020 to June 22, 2021; Oregon OSHA's rule from November 16, 2020 (permanent May 4, 2021); California's Cal/OSHA emergency standard from November 30, 2020 (readopted June 17, 2021); Washington's WAC 296-800-14035 from May 26, 2020, readopted without interruption through 2021; New Mexico's four-hour case-reporting rule from August 5, 2020; and the State face-covering orders, airborne-transmission controls that reached every dock and terminal employee, standing alone in some instruments and beside the screening, distancing and capacity duties of others (New Jersey April 10, New York April 15, Pennsylvania April 19, Rhode Island April 18, Maryland April 18, Connecticut April 20, Michigan April 26, Ohio May 4, Illinois May 1, California June 18, Texas July 3, Minnesota July 25, 2020, and their counterparts).40

The traveler-quarantine layer

Drivers ran through a lattice of quarantine and checkpoint orders. Florida's Executive Orders 20-82 and 20-86 (March 24 and 27, 2020) quarantined arrivals from the New York area and Louisiana and directed roadway checkpoints, placed on Interstates 10 and 95, excepting "persons involved in any commercial activity"; Texas GA-12 (March 29, 2020) quarantined every person entering by road from Louisiana with Department of Public Safety enforcement, excepting travel "in connection with commercial activity"; Rhode Island stopped New York-plated vehicles from March 28, 2020; Alaska's Health Mandate 010 required a quarantine or a filed protective plan from March 25, 2020 to February 14, 2021; Vermont's Addendum 7 and Maine's Executive Order 34 quarantined non-essential arrivals and closed lodging; Hawaii quarantined every trans-Pacific arrival from March 26, 2020; Oklahoma, West Virginia, South Carolina, Kentucky, Montana, Kansas, Delaware and New Mexico issued their own; New York's Executive Order 205 (June 25, 2020 to April 1, 2021), Connecticut's 7III (July 21, 2020 to March 19, 2021), Massachusetts Order 45 (August 1, 2020 to March 22, 2021), Chicago's Emergency Travel Order (July 6, 2020 to June 2021) and Pennsylvania's test-or-quarantine order (November 20, 2020 to March 1, 2021) governed the second half of 2020 and the first quarter of 2021.41 Each excepted "commercial" or "essential" travel only on conditions (documentation, plans, no stops, twenty-four-hour limits), and the driver's rest, food, fuel and lodging along those routes ran under the dine-in, lodging and plaza closures of the same weeks.

The motor-vehicle layer

Motor-vehicle agencies closed their offices in nearly every State between March 16 and March 27, 2020, under the States' emergency orders and their own authority, and reopened them by appointment weeks or months later; skills tests were cancelled; credentials were extended because the offices that renew them were shut. The agencies' closure notices and releases, cited here as evidence of those closures and extensions and not as orders, record that Indiana's Bureau of Motor Vehicles closed every branch from March 24, 2020; that Wisconsin's DMV closed every center on March 20, moved to appointments on March 23 and cancelled skills tests; that California's DMV closed its field offices from March 27, 2020, reopened them in May and June, suspended behind-the-wheel tests from March 27 to June 2020 and again from December 14, 2020 to January 11, 2021 (Ex. AGY-ST-DMV-SOS-RECORDERS-016), and, by its release of September 2, 2021, extended every commercial driver license expiring since March 2020 through November 30, 2021 (Ex. AGY-ST-DMV-SOS-RECORDERS-017); that New Jersey's Motor Vehicle Commission closed its agencies, road testing and inspection facilities from March 16 to July 7, 2020 and extended commercial credentials to December 31, 2020; that Tennessee, South Carolina, Louisiana and Alabama closed or limited their offices; and that Pennsylvania closed its driver license centers on March 16, 2020.42 Hiring stopped at the credential.

The third quarter of 2021

In the third quarter of 2021 the State layer consisted of the continuing emergencies of California, Washington, Oregon, Illinois, Louisiana, New Mexico, Nevada, Hawaii, Texas, Connecticut, Rhode Island, Colorado, Indiana, Iowa, Idaho, Delaware, Maryland, New Jersey, Georgia, Kentucky, Tennessee, Missouri, Alabama, Mississippi, West Virginia and the District of Columbia, with Arkansas, Alabama and New York re-declaring emergencies inside the quarter; the occupational standards of California, Virginia, Washington, Oregon and New Mexico and Washington's Proclamation 20-25.14, Washington Ready, of July 1, 2021, with the Washington Ready plan and the Department of Labor and Industries' readoption of WAC 296-800-14035 on July 6, 2021; New Jersey's Executive Order 192 requirements for unvaccinated or unverified employees and daily health checks, carried by Executive Orders 242 and 243; New York's HERO Act plans, due August 5, 2021 and activated by the Commissioner of Health's designation of September 6, 2021, and its Department of Health's face-covering, masking, vaccination and school-testing rules (10 NYCRR Subpart 66-3, 2.60, 2.61 and 2.62); Georgia's mandatory mitigation duty on every in-person Organization from August 19, 2021; the indoor face-covering orders of Louisiana (August 4), Nevada (July 30), Oregon (August 13), Washington (August 23), Illinois (August 30), New Mexico (August 17, with directive from August 20), Hawaii (throughout) and the District (July 31), and of Connecticut and California for the unvaccinated, each an airborne-transmission control on every indoor workplace in the State; the health-care-worker vaccination orders of California, Oregon, Washington, New Jersey, Massachusetts, Illinois, Connecticut, Maine and Maryland and the District's requirement announced August 16, 2021, each a condition on the industry's health-care receivers, and the State-workforce vaccination-or-testing orders of North Carolina, Virginia, Maryland, Massachusetts and Minnesota; the school masking and quarantine orders of Illinois, Kentucky, New Jersey, Pennsylvania, Oregon, Nevada, Louisiana, Hawaii, Connecticut, California, New Mexico, Massachusetts, Rhode Island, Washington, Virginia, Indiana and the District, and the orders of Tennessee, Montana and North Carolina that dictated the rules the workforce's schools operated under; and, in Texas, Florida, Arizona, Georgia and Tennessee, the State orders that dictated what rules the industry's employers would operate under by preempting or barring local mandates.43 The State table on this page tabulates each jurisdiction, and each State's page collects its instruments.

The largest metros

The local layer

The freight metros issued their own orders, before, beside and after the States'. Los Angeles County's Safer at Home orders of March 19 and 21, 2020 closed every non-essential workplace, and its April 10 revision compelled every "Essential Business," warehouses included, to adopt a written Social Distancing Protocol by April 15 and to supply and require face coverings; the County reinstated universal indoor face coverings, an airborne-transmission control on every business as a workplace, for everyone "regardless of vaccination status" in "all indoor public settings and businesses" from 11:59 p.m. July 17, 2021, ordered every health-care employer to document vaccination by September 30, 2021, and required face coverings at mega events from August 19, 2021.44 New York City's Emergency Executive Orders 100, 102 and 103 (March 16-25, 2020) cut every business's in-person workforce by half and then to zero and cancelled "any non-essential gathering of individuals of any size"; its emergency ran on every day of the third quarter of 2021 and its Key to NYC order conditioned entry to every indoor restaurant, gym and venue on proof of vaccination from August 17, 2021.45 Chicago's Public Health Orders of March 2020, its Emergency Travel Order of July 6, 2020, its Phase 5 order of June 11, 2021 and its indoor face-covering order of August 20, 2021, an exposure control on every indoor workplace in the city, governed the nation's largest intermodal hub; Metra and the CTA kept the federal airborne-transmission control and reduced schedules through the quarter.46 Harris County's disaster declaration ran from March 11, 2020 through the period, its county-building screening and face-covering orders from May 25 and August 17, 2021, and its school order from August 12, 2021, beside the Port of Houston's federal rules.47 Dallas County's Stay Home Stay Safe order of March 22, 2020 with its April 16 revision, its May 4, 2020 occupancy order, its June 19, 2020 business face-covering mandate (a workplace exposure-control requirement on every commercial entity) and Tarrant County's of June 25, its long-term-care and continuing-requirements orders of August 4, 2020, and its universal indoor face-covering order of August 11, 2021 (re-issued August 12, modified August 16, "continuing until rescinded"), an airborne-transmission control on every commercial entity, school and child-care center in the county, governed the DFW hub; the CDC order governed DART, Trinity Metro and the Trinity Railway Express.48 Philadelphia's emergency regulation of April 29, 2020 and its Full Reopening Order of June 15, 2021 as amended August 11 and 13, 2021 governed PhilaPort's city; Montgomery County, Maryland's Board of Health regulation of August 5, 2021 governed the District's suburbs; Atlanta's stay-at-home order of March 23, 2020, Fulton County's Board of Health order of March 31, 2020, DeKalb's telework directive and Atlanta's indoor face-covering order of July 28, 2021, an airborne-transmission control on every indoor public place in the city (enforceable against private businesses until Executive Order 08.19.21.03 of August 19, 2021 barred it) governed Georgia's freight capital.49 Phoenix, Boston, the Bay Area, Detroit, Seattle, the Twin Cities, San Diego, Denver, St. Louis, Las Vegas, New Orleans, Honolulu, Baltimore, Memphis, Cincinnati, Cleveland, Charlotte, Columbus, Indianapolis, Kansas City, Milwaukee and Madison, Orlando, Pittsburgh, the Inland Empire, Sacramento, San Antonio, Louisville, Salt Lake City and Tampa each issued orders in 2020 and again in the third quarter of 2021; the six-quarter section below states them by quarter, and each metro's page collects its instruments.

The sector regulators

The industry's regulators wrote the conditions under which it moved, and each condition is an order from an appropriate governmental authority limiting commerce or travel. FMCSA's emergency declaration is posture only. The CDC and TSA wrote the conveyance rule and its sole-occupant exception. DHS wrote twenty months of essential-travel determinations at every crossing, and CBP administered duty deferrals and entry processing under them. The Coast Guard's Captains of the Port held the order authority over every vessel and waterfront facility and, through the Marine Safety Information Bulletins this page cites as context, implemented the crew and credential conditions and the CDC order's airborne-transmission control, its face-covering requirement, at every port; MARAD and the Federal Maritime Commission recorded the congestion; the port authorities of Los Angeles, Virginia, Georgia, Philadelphia and Oakland wrote access orders implementing the State and county orders as conditions of entry to the terminal. The FRA wrote the freight rail emergency order carrying the same airborne-transmission control. The FAA and DOT wrote the cargo-in-cabin exemptions, slot waivers and service-obligation orders. OSHA wrote the emphasis programs and the Healthcare ETS. The Pennsylvania Turnpike Commission and the New York State Thruway Authority closed plazas and suspended cash tolling. The State occupational-safety programs of California, Virginia, Michigan, Oregon, Washington, New Mexico and Nevada wrote the floor rules. The State motor-vehicle agencies closed the offices, suspended the tests and extended the credentials, actions their notices record. The State legislatures of New York, New Jersey, Colorado, California, Massachusetts and Washington wrote paid-leave mandates that reached every hourly driver and dock worker.50

The counterparties

An order on a counterparty is an order limiting the commerce of the carrier, warehouse or wholesaler that transacts with it, and the United States has said so: "a business may be suspended 'due to' a government order addressing a third party."51 Hospitals and nursing homes received under visitor bans, temperature screening and, from June 21, 2021, OSHA's Healthcare ETS; schools closed in every State in the spring of 2020, ran remote or hybrid under State orders through the 2020-21 year, and reopened in person in the autumn of 2021 under masking and quarantine rules that governed the workforce's children; retailers, restaurants, plants and construction sites were closed, capped and reopened by the orders their own industry analyses on this site collect; ports and rail ramps ran under the maritime and rail orders; truck stops, rest areas and hotels ran under the dine-in closures, the plaza closures and the lodging orders; motor-vehicle offices ran under the closure orders of the State agencies; and federal facilities received deliveries from July 29, 2021 only under the Task Force's attestation rules.52

The ecosystem

The ecosystem orders reached the industry's inputs and its imports. The entry proclamations of January 31, 2020 onward, consolidated in Proclamation 10143 and extended to India by Proclamation 10199, ran to November 8, 2021; the Title 42 orders governed the land borders; the DPA orders, the scarce-materials designation and the FEMA export rule governed every distributor and importer of protective equipment; the FFCRA governed leave; the foreign lockdowns of Mexico, China, India and Southeast Asia, stated by name and never as United States orders, closed the plants from which the industry's tractors, parts, tires and wholesale inventories came.53 The orders on group meetings reached the industry's own calendar as well: the trade shows, conventions, championships and recurring terminal gatherings that the venue jurisdictions' gathering caps closed, capped or drove online in 2020 and 2021, with each organizer's stated action and the venue orders by exhibit, are recorded in the Library's group-meetings records for this industry.

The standing duties

Three layers of law bound every employer on every day of the six quarters whether or not any emergency order named it: the orders' own conditions of operating; the standing statutes that commanded every person to prevent and control communicable disease and every employer to furnish a safe and healthful workplace, with the offenses for disobeying health and emergency orders; and the liability shields that, where conditioned, protected only the business that complied with governmental standards, guidance and protocols. 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, and a legislature, a health department, a labor department and an occupational-safety agency are each an appropriate governmental authority; the pandemic directives gave each its content.54 It is stated here for eight States (Texas, California, Ohio, New York, Indiana, New Jersey, North Carolina and Florida); the fifty-one-jurisdiction analysis is on the standing duties page.

The first layer is the orders' own conditions of operating, and the verbs are commands. Texas: "Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy of the establishment" (GA-28) and "Every person in Texas shall wear a face covering over the nose and mouth when inside a commercial entity" (GA-29, a workplace infection-prevention and exposure-control requirement inside every dock office and terminal), each under the § 418.173 penalty recital; the DSHS protocols incorporated with "should" are recommendations, compulsory through the safe-workplace statute, the general duty clause and the 2021 shield and, from March 10, 2021, through those alone.55 New York: "Each employer shall reduce the in-person workforce at any work locations by 50%" (EO 202.6), then reopening "subject to the guidance promulgated by the Department of Health" (EO 202.31).56 New Jersey: warehousing businesses "must adopt policies that include, at minimum, the following requirements" (EO 122); from November 5, 2020 every employer whose workforce is "physically present at a worksite to perform work is required to abide by the following requirements, at minimum" (EO 192).57 Ohio: "All businesses and operations shall continue to comply with Social Distancing Requirements"; "Businesses must require all employees to wear facial coverings" (May 29, 2020 to April 5, 2021).58 Indiana: "all Hoosier employers shall develop a plan to implement measures and institute safeguards" (EO 20-26 ¶ 4).59 California: "must, when they do so, continue at all times to practice physical distancing" (May 7, 2020); from June 11, 2021 the guidance "will not be mandatory," and the standing duties alone carried the floor.60 North Carolina: establishments open to the public "must follow" the Core Signage, Screening, and Sanitation Requirements (EO 141); other businesses "are strongly encouraged to," a recommendation the control-measure rule below made compulsory.61 Florida wrote its conditions on the industry's receivers (EO 20-123 § 1.B) and declared its Phase 2 employer paragraph "guidance and not enforceable under section 252.47"; there the compulsion on the warehouse floor is the standing law.62

The second layer is that standing law, in force before March 2020 and through September 30, 2021. Texas states the duty on the person: "The state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease" (Health and Safety Code § 81.002), with control measures on any "individual, animal, place, or object," a Class B misdemeanor for knowingly refusing them and a third-degree felony for disobeying a published area-quarantine order.63 North Carolina: "All persons shall comply with control measures ... prescribed by the Commission," and the Commission's rule makes the guidelines "published by the Centers for Disease Control and Prevention" "the required control measures."64 Indiana: "A person shall not institute, permit, or maintain any conditions that may transmit, generate, or promote disease"; violating an emergency order was a misdemeanor, then an infraction.65 Ohio: no person in charge of a "place of public accommodation, amusement, resort, or trade" who knows of exposure "shall negligently fail to take reasonable measures to protect the public from exposure to the contagion."66 New York, New Jersey, California and Florida punished the violation of any health or emergency order with civil penalties and misdemeanors.67 Every private employer was also under the general duty clause, "free from recognized hazards," enforced against "the recognized hazard of SARS-CoV-2" by citation from September 2020, including against a general warehousing employer in April 2021; and seven States command the same by statute: Texas Labor Code § 411.103 ("reasonably safe and healthful"), California Labor Code § 6400, New York Labor Law § 200, New Jersey's § 34:6A-3, Ohio's frequenter statutes, Indiana's § 22-8-1.1-2 and North Carolina's § 95-129; in Florida the federal clause alone supplies the duty.68

The third layer is the liability shields, which took two forms. Texas protects a business, for every action commenced on or after March 13, 2020, 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"; Florida, retroactively from March 29, 2021, protects only a defendant that "made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance."69 Indiana, North Carolina and Ohio set a culpability floor without a compliance clause; Ohio's act provides that an order, recommendation or guideline "shall neither create nor be construed as creating a duty of care."70 New York and New Jersey shielded health-care providers only; California enacted none, leaving Evidence Code § 669's presumption of negligence in force.71 Where the shield was conditioned on compliance, the legislature declared compliance with governmental standards the standard of care; where it set only a culpability floor, or where none was enacted, the statutes and orders above kept that standard in full force. In either form the duty ran to the employer. A carrier, warehouse or wholesaler that distanced its dock, screened its shifts, masked its floor and emptied its office was not choosing; it was complying, and the answers below hold the Service to the point.

  1. Moreland et al., Timing of State and Territorial COVID-19 Stay-at-Home Orders and Changes in Population Movement, 69 MMWR 1198 (Sept. 4, 2020) (Ex. LAW-201). ↩
  2. Council of State Governments and Ballotpedia count of 2,065 executive orders (June 29, 2020) (Ex. LAW-203); Katz et al., COVID AMP dataset, 10 Sci. Data 491 (2023) (Ex. LAW-202); HHS, State and County Policy Orders dataset (Ex. LAW-205). ↩
  3. Kaiser Family Foundation, State Social Distancing Actions (data file of July 2, 2021) (Ex. LAW-246); id. (data file of Sept. 21, 2021) (Ex. LAW-247). ↩
  4. 85 Fed. Reg. 16548 (Mar. 24, 2020) (Canada) (Ex. FED-216); 85 Fed. Reg. 16547 (Mar. 24, 2020) (Mexico) (Ex. FED-239); renewals of June 24, 2020 (Ex. FED-219, Ex. FED-242), July 22, 2020 (Ex. FED-220, Ex. FED-243), Sept. 23, 2020 (Ex. FED-222, Ex. FED-245), Oct. 22, 2020 (Ex. FED-223, Ex. FED-246), Dec. 22, 2020 (Ex. FED-225, Ex. FED-248), Jan. 19, 2021 (Ex. FED-227, Ex. FED-250), Mar. 19, 2021 (Ex. FED-229, Ex. FED-252), Apr. 22, 2021 (Ex. FED-230, Ex. FED-253) and June 23, 2021 (Ex. FED-232, Ex. FED-255); 19 U.S.C. § 1318(b)(1)(C), (b)(2). The notices define non-essential travel by example ("sightseeing, recreation, gambling, or attending cultural events") and list the essential categories, including "truck drivers supporting the movement of cargo." ↩
  5. Executive Order 13909, 85 Fed. Reg. 16227 (Mar. 18, 2020) (Ex. FED-070); Executive Order 13910, 85 Fed. Reg. 17001 (Mar. 23, 2020) (Ex. FED-071); Executive Order 13911, 85 Fed. Reg. 18403 (Mar. 27, 2020) (Ex. FED-072); Executive Order 13917, 85 Fed. Reg. 26313 (Apr. 28, 2020) (Ex. FED-073); HHS, Notice of Designation of Scarce Materials, 85 Fed. Reg. 17592 (Mar. 25, 2020) (Ex. FED-074); Extension of Designation (Feb. 1, 2021) (Ex. ECO-A-070); Extension of Designation (July 7, 2021) (to Nov. 15, 2021) (Ex. ECO-A-071); FEMA, 44 C.F.R. pt. 328, 85 Fed. Reg. 20195 (Apr. 10, 2020) (Ex. FED-075); 50 U.S.C. § 4511. ↩
  6. CISA, Guidance on the Essential Critical Infrastructure Workforce (Mar. 19, 2020) (Ex. FED-394); Version 3.0 (Apr. 17, 2020) (Ex. SEC-07-003). ↩
  7. FMCSA, Notice (Sept. 7, 2022) (reciting the Mar. 13, 2020 Emergency Declaration No. 2020-002 and its extensions to Oct. 15, 2022); FMCSA, Notice (Aug. 27, 2021) (Ex. SEC-11-062) ("On May 26, 2021, FMCSA extended the modified Emergency Declaration No. 2020-002 and associated regulatory relief through August 31, 2021, in accordance with 49 CFR 390.25."); FMCSA, Notice (May 5, 2022) (Ex. SEC-11-063) (reciting the extensions of June 15, Aug. 15 and Dec. 1, 2020 and Aug. 31 and Nov. 29, 2021). The declaration's hours-of-service relief for relief loads is not a limitation and is not relied on as one; the finding it rests on is. ↩
  8. U.S. Coast Guard, MSIB 11-20 (Mar. 27, 2020) (Ex. AGY-USCG-PORTS-012); MSIB 07-20, Change 2 (May 7, 2020) (Ex. AGY-USCG-PORTS-021); MSIB 08-20, Change 5 (Dec. 22, 2020) (Ex. AGY-USCG-PORTS-028); MSIB 10-20 (Mar. 27, 2020) (drug-testing requirements during the national emergency) (Ex. AGY-USCG-PORTS-011). Each bulletin is classified as context in the Library's agency records and is cited as the Coast Guard's record of the regime; the enforceable instruments are the Captains of the Port's orders, 33 C.F.R. §§ 160.216 and 105.125 and, from Feb. 1, 2021, Ex. FED-020. ↩
  9. DOT ODAPC, COVID-19 Drug & Alcohol Testing Statement of Enforcement Discretion (Apr. 4, 2020) (Ex. AGY-AVIATION-SURFACE-045), as updated May 27, 2021 ("effective through December 31, 2021") (Ex. AGY-AVIATION-SURFACE-046) (classified as context in the Library's agency records; cited as the Department's record of the limitations); Pennsylvania Turnpike Commission, service plaza closure and limited reopening (Mar. 17-20, 2020) (Ex. AGY-AVIATION-SURFACE-053). ↩
  10. Pub. L. 116-127, 134 Stat. 178 (Ex. ECO-B-001); 29 C.F.R. pt. 826 (Ex. ECO-B-002); revisions of Sept. 11, 2020 (Ex. ECO-B-003). ↩
  11. CDC, Order Suspending the Right To Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists, 85 Fed. Reg. 65806 (Oct. 13, 2020) (Ex. FED-037). ↩
  12. 86 Fed. Reg. 8025 (Feb. 3, 2021) (Ex. FED-020); TSA SD 1582/84-21-01A (announced Apr. 30, 2021; "EFFECTIVE DATE May 12, 2021"; "EXPIRATION DATE September 13, 2021"; the directive's face carries no issue date) (Ex. FED-051); Notification of Ratification of Security Directives and Emergency Amendment, 86 Fed. Reg. 26825 (May 18, 2021) (ratification executed Apr. 20, 2021) (Ex. FED-056); TSA SD 1582/84-21-01 (Jan. 31, 2021; effective 11:59 p.m. Feb. 1, 2021; expiration May 11, 2021) (Ex. FED-050); 42 U.S.C. § 264 (Ex. LAW-301); 49 U.S.C. § 114(l)(2) (Ex. LAW-305). ↩
  13. Ex. AGY-USCG-PORTS-031 (MSIB 02-21, Feb. 1, 2021), Ex. AGY-USCG-PORTS-033 (Change 1, Mar. 22, 2021: sea ports), Ex. AGY-USCG-PORTS-037 (Change 2, June 11, 2021), Ex. AGY-USCG-PORTS-032 (MSIB 04-21, Mar. 17, 2021), Ex. AGY-USCG-PORTS-034 (MSIB 13-20, Change 3, Apr. 21, 2021), Ex. AGY-USCG-PORTS-035 (MSIB 02-20, Change 7, May 5, 2021); 46 U.S.C. §§ 70002, 70011, 70051; 33 C.F.R. § 160.111. The bulletins are cited as evidence of the Captains of the Port's implementation of Ex. FED-020 and of the conditions they record, not as orders (classified as context in the Library's agency records). ↩
  14. FRA, Emergency Order No. 32, 86 Fed. Reg. 11888 (Mar. 1, 2021) (issued Feb. 26, 2021) (Ex. AGY-AVIATION-SURFACE-014); Statement of Enforcement Discretion (June 10, 2021) (outdoor areas; indoor and on-train requirements unchanged) (Ex. AGY-AVIATION-SURFACE-075) (secondary exhibit); 49 U.S.C. § 20104. ↩
  15. Proclamation 10143, 86 Fed. Reg. 7467 (Jan. 25, 2021) (Ex. FED-207); Proclamation 10199, 86 Fed. Reg. 24297 (Apr. 30, 2021) (Ex. FED-208); CDC, Requirement for Negative Pre-Departure COVID-19 Test Result or Documentation of Recovery From COVID-19 for All Airline or Other Aircraft Passengers Arriving Into the United States From Any Foreign Country, 86 Fed. Reg. 7387 (Jan. 28, 2021) (order signed Jan. 25, 2021; effective Jan. 26, 2021) (Ex. FED-042); Ex. FED-227, Ex. FED-228, Ex. FED-229, Ex. FED-230, Ex. FED-231, Ex. FED-232 (Canada) and Ex. FED-250, Ex. FED-251, Ex. FED-252, Ex. FED-253, Ex. FED-254, Ex. FED-255 (Mexico); 8 U.S.C. § 1182(f) (Ex. LAW-314). ↩
  16. OSHA, DIR 2021-01 (Mar. 12, 2021) (Ex. FED-082); OSHA, Occupational Exposure to COVID-19; Emergency Temporary Standard, 86 Fed. Reg. 32376 (June 21, 2021) (29 C.F.R. § 1910.502) (Ex. FED-080); DIR 2021-02 (June 28, 2021) (Ex. FED-081). ↩
  17. DOT, Order 2021-4-13, Docket DOT-OST-2020-0037 (Apr. 29, 2021) (service obligations to Sept. 30, 2021) (Ex. AGY-AVIATION-SURFACE-035); FAA, Exemption No. 18584 (July 10, 2020) (Ex. AGY-AVIATION-SURFACE-025); Exemptions 18561B and 18584A (July 9, 2021) (to Dec. 31, 2021) (Ex. AGY-AVIATION-SURFACE-021, Ex. AGY-AVIATION-SURFACE-022). ↩
  18. Ex. ECO-A-070. ↩
  19. Ex. FED-020, Ex. FED-051, Ex. FED-052 (SD 1582/84-21-01B, announced Aug. 20, 2021; "EFFECTIVE DATE September 14, 2021"; "EXPIRATION DATE January 18, 2022"; no issue date on its face), Ex. AGY-USCG-PORTS-037, Ex. AGY-USCG-PORTS-038, Ex. AGY-AVIATION-SURFACE-014, Ex. FED-232 to Ex. FED-235, Ex. FED-255 to Ex. FED-258, Ex. FED-207, Ex. FED-208, Ex. FED-209 (Proclamation 10294, 86 Fed. Reg. 59603 (Oct. 25, 2021), revoking the suspensions effective Nov. 8, 2021), Ex. FED-037, Ex. FED-038 (86 Fed. Reg. 42828 (Aug. 5, 2021) (order of Aug. 2, 2021)), Ex. FED-083, Ex. FED-080, Ex. FED-272 (Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Agency Model Safety Principles (rev. July 29, 2021)), Ex. FED-278 (Certification of Vaccination form (Aug. 6, 2021)), Ex. FED-063 (Executive Order 14042, 86 Fed. Reg. 50985 (Sept. 14, 2021)), Ex. FED-064 (Executive Order 14043, 86 Fed. Reg. 50989 (Sept. 14, 2021)), Ex. FED-016 (Renewal of Determination That a Public Health Emergency Exists (July 19, 2021)). ↩
  20. Ex. LAW-201; the earliest stay-at-home instruments of each State are collected on the State pages; for the eight States without a stay-at-home command, see Arkansas Department of Health Directive of Mar. 19, 2020 (Ex. AR-035); Iowa Proclamation of Disaster Emergency (Mar. 26, 2020) and (Apr. 16, 2020); Nebraska Directed Health Measure Order 2020-001 (Mar. 19, 2020) (Ex. NE-002); North Dakota Executive Order 2020-06 (Mar. 19, 2020) (Ex. ND-005); Oklahoma Fourth Amended Executive Order 2020-07 (Mar. 24, 2020) (Ex. OK-006); South Dakota Executive Order 2020-08 (Mar. 23, 2020) (Ex. SD-005); Utah State Public Health Order (Mar. 17 and 21, 2020) and Stay Safe, Stay Home directive (Mar. 27, 2020) (Ex. UT-004); Wyoming Statewide Public Health Orders #1 and #3 (Mar. 19 and 24, 2020) (Ex. WY-004, Ex. WY-006). ↩
  21. Ex. SEC-11-021 (Pennsylvania); Executive Order No. 202.6 (N.Y. Mar. 18, 2020); Ex. SEC-07-023 (New York essential list); Ex. SEC-11-022 (New York wholesale guidance). Representative incorporations of the CISA list: Executive Order N-33-20 (Cal. Mar. 19, 2020); Executive Order 2020-10 (Ill. Mar. 20, 2020); Executive Order GA-14 (Tex. Mar. 31, 2020); Proclamation 20-25 (Wash. Mar. 23, 2020) (Ex. WA-016); Executive Order 04.02.20.01 (Ga. Apr. 2, 2020) (Ex. SEC-16-054); Proclamation 33 JBE 2020 (La. Mar. 22, 2020); Executive Order D 2020 017 (Colo. Mar. 25, 2020) (Ex. CO-012); Executive Order 2020-18 (Ariz. Mar. 30, 2020) (Ex. AZ-010); Declaration of Emergency Directive 010 (Nev. Mar. 31, 2020) (Ex. NV-012); Executive Order 20-15 (Kan. Mar. 24, 2020) (Ex. KS-008); Executive Order No. 121 (N.C. Mar. 27, 2020); Executive Order 55 (Va. Mar. 30, 2020); Order No. 20-03-30-01 (Md. Mar. 30, 2020); Mayor's Order 2020-054 (D.C. Mar. 30, 2020) (Ex. DC-006). ↩
  22. Dine-in closures: Executive Order No. 202.3 (N.Y. Mar. 16, 2020) (Ex. NY-010); Executive Order 2020-07 (Ill. Mar. 16, 2020) (Ex. IL-004); Executive Order GA-08 (Tex. Mar. 19, 2020) (Ex. TX-003); Director's Order Limiting the Sale of Food and Beverages (Ohio Mar. 15, 2020) (Ex. OH-004); Executive Order 2020-9 (Mich. Mar. 16, 2020) (Ex. MI-005); COVID-19 Order No. 5 (Mass. Mar. 15, 2020) (Ex. MA-005); Executive Order No. 104 (N.J. Mar. 16, 2020) (Ex. NJ-002); Executive Order 20-68 (Fla. Mar. 17, 2020) (Ex. FL-005); Proclamation 20-13 (Wash. Mar. 16, 2020) (Ex. WA-009); Executive Order 20-07 (Or. Mar. 17, 2020) (Ex. OR-003). Construction and manufacturing closures: Ex. SEC-11-021 (Pa.); Ex. SEC-11-020 ¶ 1 (N.J. non-essential construction, Apr. 10 to May 18, 2020); Executive Order 2020-21 (Mich. Mar. 23, 2020); Ex. WA-016; Emergency Executive Order 20-20 (Minn. Mar. 25, 2020) (Ex. MN-010); Boston Temporary Guidance for Construction (Mar. 16, 2020) (Ex. MET-BOS-004); San Francisco Health Officer Order No. C19-07b (Mar. 31, 2020) (Ex. MET-SFO-002). ↩
  23. Ex. SEC-11-020, Ex. SEC-10-021 (EO 192), Ex. SEC-10-022 (EO 243, May 26, 2021, effective June 4, 2021), Ex. SEC-11-022, Executive Order No. 202.16 (N.Y. Apr. 12, 2020), Ex. SEC-11-030, Ex. OH-019, Ex. MN-015, Ex. SEC-10-045, Worker Safety Order (Pa. Apr. 15, 2020), Ex. PA-015 (Pa. mask order, July 1, 2020), Executive Order 2020-586 (Ky. July 9, 2020) and the Healthy at Work Minimum Requirements (CHFS Order of May 9, 2020) (Ex. SEC-10-053), the Healthy at Work Requirements for Manufacturing, Distribution, and Supply Chain Businesses (May 11, 2020) (Ex. SEC-10-051) and the Requirements for Office-Based Businesses (May 11, 2020) (Ex. KY-019), Ex. MA-008 (Order No. 13) and Ex. MA-016 (Order No. 31, May 1, 2020), Ex. SEC-10-035 (Ill. EO 2020-32, Apr. 30, 2020) and Executive Order 2020-38 (Ill. May 29, 2020), Ex. SEC-10-042 (Va. ETS) and Ex. SEC-10-043 (permanent standard, effective Jan. 27, 2021, as amended effective Sept. 8, 2021), Ex. AGY-ST-LABOR-WORKPLACE-049 (MIOSHA rules) (secondary) and Ex. MET-DET-032 (the rules as restated by Wayne County), Ex. SEC-09-013 and Ex. AGY-ST-LABOR-WORKPLACE-018 (Oregon OSHA temporary rule, Nov. 16, 2020, as refiled Dec. 11, 2020) and Ex. SEC-09-014 (permanent rule, May 4, 2021), Ex. SEC-11-027 (Cal/OSHA) and Ex. SEC-02-047 (readoption, June 17, 2021), Ex. AGY-ST-LABOR-WORKPLACE-050 (WAC 296-800-14035, May 26, 2020), Ex. AGY-ST-LABOR-WORKPLACE-066 (11.5.1.16 NMAC, Aug. 5, 2020) and Ex. AGY-ST-LABOR-WORKPLACE-027 (as codified), Ex. NJ-011 (EO 122 as the New Jersey mask order), Ex. RI-015 (Executive Order 20-24, Apr. 14, 2020), Order No. 20-04-15-01 (Md. Apr. 15, 2020), Executive Order No. 7BB (Conn. Apr. 17, 2020; effective Apr. 20) and Executive Order No. 7V (Conn. Apr. 7, 2020) (Safe Workplace Rules), Ex. MI-020 (Executive Order 2020-59, Apr. 24, 2020), CDPH Guidance for the Use of Face Coverings (Cal. June 18, 2020), Executive Order GA-29 (Tex. July 2, 2020), Emergency Executive Order 20-81 (Minn. July 22, 2020; effective July 25, 2020), Proclamation 89 JBE 2020 (La. July 11, 2020), Executive Order No. 147 (N.C. June 24, 2020), Executive Order 20-37 (Ind. July 24, 2020; effective July 27, 2020), Ex. WV-041 (Executive Order 50-20, July 6, 2020), Ex. WI-009 (Emergency Order #1, July 30, 2020), Ex. MT-016 (Face Covering Directive, July 15, 2020), Thirteenth Modification (Del. Apr. 25, 2020), Addendum 10 (Vt. Apr. 17, 2020), Executive Order 49 FY 19/20 (Me. Apr. 29, 2020), Ex. DC-007 (Mayor's Order 2020-058, Apr. 8, 2020, to Apr. 24, 2020), Ex. DC-019 and Ex. DC-029 (Mayor's Orders 2020-066 and 2020-067 § II.3, carrying the face-covering requirement from May 16, 2020). ↩
  24. Ex. SEC-11-041, Ex. SEC-11-040, Ex. SEC-11-044, Ex. SEC-11-047 (secondary), Ex. SEC-11-055, Ex. SEC-11-054, Ex. HI-003 (Second Supplementary Proclamation and Rules Relating to COVID-19, Mar. 21, 2020; fourteen-day self-quarantine of all arriving persons effective 12:01 a.m. Mar. 26, 2020), Third Supplementary Proclamation (Haw. Mar. 23, 2020; the statewide stay-at-home order), Ex. OK-010 (Sixth Amended Executive Order 2020-07 ¶ 26, Mar. 29, 2020; air-traveler quarantine to May 12, 2020), Ex. SEC-11-059 (secondary), Ex. SEC-11-048, Ex. SEC-11-049 (also Ex. CT-023), Ex. MA-025, Ex. MET-CHI-019 (Chicago Public Health Order No. 2020-10, July 2, 2020; effective July 6), Ex. SEC-11-046, Ex. RI-009 (Executive Order 20-13, Mar. 28, 2020). New York's EO 205 provides that violations "may be enforced pursuant to article 21 of the public health law"; Connecticut's 7III exempts critical-infrastructure workers only "when such travel is related to their work in Connecticut"; Pennsylvania's order excepts travel "for the purposes of work" and no other purpose. ↩
  25. Ex. AGY-ST-DMV-SOS-RECORDERS-002, Ex. AGY-ST-DMV-SOS-RECORDERS-007, Ex. AGY-ST-DMV-SOS-RECORDERS-012, Ex. AGY-ST-DMV-SOS-RECORDERS-018, Ex. AGY-ST-DMV-SOS-RECORDERS-017, Ex. AGY-ST-DMV-SOS-RECORDERS-019, Ex. AGY-ST-DMV-SOS-RECORDERS-021, Ex. AGY-ST-DMV-SOS-RECORDERS-022, Ex. AGY-ST-DMV-SOS-RECORDERS-026, Ex. AGY-ST-DMV-SOS-RECORDERS-097, Ex. AGY-ST-DMV-SOS-RECORDERS-099; Ex. AGY-AVIATION-SURFACE-053; Ex. SEC-11-061. ↩
  26. Emergencies: California, Proclamation of a State of Emergency (Mar. 4, 2020) (Ex. CA-001), in force through the quarter, under which Executive Order N-07-21 (Cal. June 11, 2021) (Ex. CA-027) rescinded Executive Order N-33-20 and the Blueprint effective June 15, 2021 and left the emergency in place; Proclamation 20-25.14 (Wash. July 1, 2021) (Ex. WA-072); Executive Order 21-15 (Or. June 25, 2021) (Ex. OR-043); Executive Order 2021-15 (Ill. July 23, 2021) (Ex. IL-039); Proclamations 117, 131 and 145 JBE 2021 (La. June 22, July 21 and Aug. 6, 2021) (Ex. LA-034, Ex. LA-035, Ex. LA-037); Executive Orders 2021-030 and 2021-044 (N.M. June 25 and July 23, 2021) (Ex. NM-058, Ex. NM-061); Emergency Proclamation (Haw. Aug. 5, 2021); Proclamation renewing the disaster declaration (Tex. Aug. 29, 2021) (Ex. TX-038); Renewed Declarations (Conn. July 13, 2021) (Ex. CT-048); Executive Order 21-77 (R.I. July 8, 2021) (Ex. RI-048); Executive Orders D 2021 122, 124, 125 and 129 (Colo. July 8, July 30, Aug. 6 and Sept. 4, 2021) (Ex. CO-043, Ex. CO-044, Ex. CO-045, Ex. CO-046); Executive Orders 21-16 and 21-18 (Ind. June 30 and July 29, 2021) (Ex. IN-065, Ex. IN-067); Proclamations of July 23, Aug. 19 and Sept. 17, 2021 (Iowa) (Ex. IA-039, Ex. IA-040, Ex. IA-041); Proclamation of July 19, 2021 and Executive Order 2021-11 (Idaho) (Ex. ID-047, Ex. ID-030); Declaration of a Public Health Emergency (Del. July 12, 2021) and its extension (Aug. 10, 2021) (Ex. DE-041, Ex. DE-042); Renewal of Declaration (Md. June 12, 2021) (Ex. MD-071); Executive Order No. 244 (N.J. June 4, 2021) (Ex. NJ-052) and P.L. 2021, c. 103 (Ex. NJ-053); Executive Orders 06.30.21.01 and 08.25.21.01 (Ga.) (Ex. GA-041, Ex. GA-044); Kentucky, Executive Order 2020-215 (Mar. 6, 2020) (Ex. KY-001), continued under 2021 Special Session House Joint Resolution 1 § 2(1) (Sept. 7, 2021), under which Executive Order 2021-386 (Ky. June 11, 2021) rescinded the Healthy at Home and Healthy at Work orders and retained the state of emergency; Executive Orders 81, 82 and 83 (Tenn. May 28, July 30 and Aug. 6, 2021) (Ex. TN-033, Ex. TN-034, Ex. TN-035) (Executive Order 88, issued Sept. 30, 2021 and effective Oct. 5, 2021, Ex. TN-037, is post-period); Executive Order 21-09 (Mo. Aug. 27, 2021) (Ex. MO-020); the Mississippi Proclamation of Mar. 14, 2020, extended Sept. 10, 2021 and reported to have expired Nov. 20, 2021 (Ex. MS-077, Ex. MS-055, secondary press reports); Executive Order 21-14 (Ark. July 29, 2021) (Ex. AR-017) (re-declaration; expired Sept. 27, 2021); Proclamation of Aug. 13, 2021 (Ala.) (Ex. AL-052) (re-declaration); the West Virginia Proclamation of a State of Emergency (Mar. 16, 2020), in force through the quarter (Ex. WV-001), under which Executive Order 23-21 (W. Va. July 20, 2021) (Ex. WV-067) ended the vehicle-inspection deadline suspension of Executive Order 7-20 § 14 effective Oct. 1, 2021; Executive Order 21-09 (Neb. June 28, 2021) (Ex. NE-067) (ending the Nebraska emergency 11:59 p.m. June 30, 2021; not claimed); Executive Order No. 06-21 (Vt. June 15, 2021) (post-emergency recovery order; the Vermont emergency ended June 15, 2021 and is not claimed); Executive Order No. 4 (N.Y. Sept. 27, 2021) (Ex. NY-070) (new health-care staffing emergency, in force Sept. 27-30, 2021); Mayor's Order 2021-096 (D.C. July 24, 2021) (Ex. DC-021). The occupational standards, the New Jersey and Georgia workplace orders, the HERO Act instruments, the New York Department of Health rules, the face-covering, vaccination, school and school-rule orders and the preemption instruments are cited item by item in notes 121 through 126 below. ↩
  27. Los Angeles County Health Officer, Safer at Home Order (revised Mar. 21, 2020) (Ex. MET-LA-003); Safer at Home Order (revised Apr. 10, 2020) ¶ 2(f)-(g) (Ex. MET-LA-004); Revised Temporary Targeted Safer at Home Order (Dec. 30, 2020) (Ex. MET-LA-012); Responding Together at Work and in the Community, Beyond the Blueprint (July 16, 2021; effective 11:59 p.m. July 17, 2021) (Ex. MET-LA-018); the same order as revised Aug. 16, 2021 (Ex. MET-LA-019); Health Care Worker Vaccination Requirement (Aug. 12, 2021) (Ex. MET-LA-023); City of Los Angeles, Safer at Home (Mar. 19, 2020) (Ex. MET-LA-028), Targeted Safer at Home (Dec. 2, 2020) (Ex. MET-LA-034) and Safer L.A. (July 17, 2021) (Ex. MET-LA-035); Long Beach Health Order (July 17, 2021) (Ex. MET-LA-045). ↩
  28. Emergency Executive Orders Nos. 100, 102 and 103 (N.Y.C. Mar. 16, 20 and 25, 2020) (Ex. MET-NYC-003, Ex. MET-NYC-005, Ex. MET-NYC-006); EEO 212 (June 26, 2021) (Ex. MET-NYC-014); EEO 214 (June 30, 2021) (Ex. MET-NYC-015); EEO 225 (Aug. 16, 2021) (Ex. MET-NYC-017), restated by EEO 228 § 4 (Aug. 25, 2021) (Ex. MET-NYC-018) and EEO 250 (Sept. 24, 2021) (Ex. MET-NYC-021); MTA face-covering rule and $50 fine (Ex. MET-NYC-046). ↩
  29. Chicago Department of Public Health, Public Health Order No. 2020-1 (Mar. 18, 2020) (Ex. MET-CHI-001); Order No. 2020-10 (July 2, 2020) (Ex. MET-CHI-019); Order No. 2020-9 (Phase 5, Eighth Amended, June 11, 2021) (Ex. MET-CHI-018); Order No. 2020-5 (Ninth Amended, May 18, 2021) (Ex. MET-CHI-010); Order No. 2021-1 (Aug. 20, 2021) (Ex. MET-CHI-026); Travel Advisory list (July 20, 2021) (Ex. MET-CHI-032); Metra operating rules (Aug. 2, 2021) (Ex. MET-CHI-051) (secondary). ↩
  30. Harris County Declaration of Local Disaster (Mar. 11, 2020) (Ex. MET-HOU-001); City of Houston Executive Order (Mar. 11, 2020) (Ex. MET-HOU-042); Commissioners Court order of May 25, 2021 (Ex. MET-HOU-037); Local Health Authority Order Regarding Public Schools (Aug. 12, 2021) (Ex. MET-HOU-038); County Judge's Eighth Order (Aug. 17, 2021) (Ex. MET-HOU-039). ↩
  31. Dallas County Judge, Stay Home Stay Safe (Mar. 22, 2020) (Ex. MET-DFW-005), as amended Apr. 16, 2020 (Ex. MET-DFW-013); order of May 4, 2020 (Ex. MET-DFW-017); order of June 19, 2020 (Ex. MET-DFW-021); Tarrant County Judge, Executive Order of June 25, 2020 (Ex. MET-DFW-048); Dallas County continuing-requirements order (Aug. 4, 2020) (Ex. MET-DFW-024); orders of Aug. 11 and Aug. 16, 2021 (Ex. MET-DFW-028, Ex. MET-DFW-031); Trinity Metro notice of the federal mask order (Feb. 2, 2021) (Ex. MET-DFW-094). ↩
  32. Philadelphia Board of Health, Emergency Regulation (Apr. 29, 2020) (Ex. MET-PHL-070); Full Reopening Order (June 15, 2021) (Ex. MET-PHL-018); Amendment (Aug. 11, 2021) (Ex. MET-PHL-019); Amendment to the Second Consolidated Regulation (Aug. 13, 2021) (Ex. MET-PHL-020); Montgomery County Board of Health Regulation, Res. 19-975 (Aug. 5, 2021) (Ex. MET-DCM-023); Prince George's County Executive Order 22-2021 (Oct. 4, 2021; post-period) (Ex. MET-DCM-047) (reciting Executive Orders 18-2021 and 19-2021 of Aug. 5, 2021); Atlanta Executive Order 2020-21 (Mar. 23, 2020) (Ex. MET-ATL-001); Fulton County Board of Health Administrative Order 20.03.31 (Ex. MET-ATL-002); DeKalb County Executive Order No. 20-001 (Mar. 23, 2020) (Ex. MET-ATL-022); Atlanta Executive Order of July 28, 2021 (Ex. MET-ATL-063) (secondary; enforceable against private businesses until Executive Order 08.19.21.03, Aug. 19, 2021); Savannah Emergency Order No. 29 (Aug. 24, 2021) (Ex. MET-ATL-017). ↩
  33. Ex. SEC-11-061, Ex. SEC-11-062, Ex. SEC-11-063 (FMCSA); Ex. FED-020, Ex. FED-051, Ex. FED-052, Ex. FED-056 (CDC and TSA); Ex. FED-216 to Ex. FED-259 (DHS); Ex. AGY-USCG-PORTS-011, Ex. AGY-USCG-PORTS-021, Ex. AGY-USCG-PORTS-028, Ex. AGY-USCG-PORTS-031, Ex. AGY-USCG-PORTS-032, Ex. AGY-USCG-PORTS-033, Ex. AGY-USCG-PORTS-034, Ex. AGY-USCG-PORTS-035, Ex. AGY-USCG-PORTS-037, Ex. AGY-USCG-PORTS-038 (USCG); Ex. AGY-AVIATION-SURFACE-014, Ex. AGY-AVIATION-SURFACE-075 (FRA); Ex. AGY-AVIATION-SURFACE-021, Ex. AGY-AVIATION-SURFACE-022, Ex. AGY-AVIATION-SURFACE-025, Ex. AGY-AVIATION-SURFACE-035 (FAA and DOT); Ex. FED-082, Ex. FED-083, Ex. FED-080, Ex. FED-081 (OSHA); Ex. AGY-AVIATION-SURFACE-053 (Turnpike); Ex. SEC-11-027, Ex. SEC-10-042, Ex. AGY-ST-LABOR-WORKPLACE-049, Ex. AGY-ST-LABOR-WORKPLACE-021, 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-061, Ex. AGY-ST-LABOR-WORKPLACE-080, Ex. AGY-ST-LABOR-WORKPLACE-027, Ex. AGY-ST-LABOR-WORKPLACE-066, Ex. AGY-ST-LABOR-WORKPLACE-069 (State OSHA programs); Ex. AGY-ST-DMV-SOS-RECORDERS-002, Ex. AGY-ST-DMV-SOS-RECORDERS-007, Ex. AGY-ST-DMV-SOS-RECORDERS-012, Ex. AGY-ST-DMV-SOS-RECORDERS-017, Ex. AGY-ST-DMV-SOS-RECORDERS-018, Ex. AGY-ST-DMV-SOS-RECORDERS-019, Ex. AGY-ST-DMV-SOS-RECORDERS-021, Ex. AGY-ST-DMV-SOS-RECORDERS-022, Ex. AGY-ST-DMV-SOS-RECORDERS-026, Ex. AGY-ST-DMV-SOS-RECORDERS-097, Ex. AGY-ST-DMV-SOS-RECORDERS-099 (motor-vehicle agencies); Ex. ECO-B-001, Ex. ECO-B-002 (federal leave); the State paid-leave statutes are cited by name from the Library's State labor and workplace records. The Coast Guard bulletins, the motor-vehicle agencies' notices and the Department of Transportation's statements are cited as the agencies' records of the regime they implemented, not as orders (classified as context in the Library's agency records). ↩
  34. Brief for Appellees at 41 & n.5, Stenson Tamaddon, LLC v. IRS, No. 25-4217 (9th Cir. Jan. 30, 2026) ("Br. for Appellees") ("a business may be suspended 'due to' a government order addressing a third party"); Notice 2021-20, 2021-11 I.R.B. 922, Q&A-12, at 928-29. ↩
  35. Ex. FED-080 (Healthcare ETS); Ex. FED-272 (Task Force principles); the school orders cited in the third-quarter inventory below; Ex. MET-DFW-024, Executive Order 2020-21 § 8 (Mich.) (health-care receivers); Ex. AGY-AVIATION-SURFACE-053 (plazas); Ex. SEC-11-054, Ex. SEC-11-055 (lodging); the six-quarter section below for each quarter. ↩
  36. Ex. FED-207, Ex. FED-208, Ex. FED-209; Ex. FED-037, Ex. FED-038; Ex. FED-070 to Ex. FED-075; Ex. ECO-A-070, Ex. ECO-A-071; Ex. ECO-B-001, Ex. ECO-B-002; Ex. ECO-A-001 (Proclamation 9984, Jan. 31, 2020). Foreign decrees are described by name only and no finding rests on them. ↩
  37. The Notice's own list of qualifying instruments is "orders, proclamations, or decrees from the Federal government or any State or local government," Notice 2021-20, 2021-11 I.R.B. 922, Q&A-10, at 928; the statutory analysis is on the statute page and the fifty-one-jurisdiction analysis of the standing duties, drawn from the Library's Duties records (exhibits prefixed DUT-), is on the standing duties page. ↩
  38. Executive Order GA-28 ¶¶ 1, 14 (June 26, 2020) ("Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy of the establishment"; "In providing or obtaining services, every person (including individuals, businesses, and other legal entities) should use good-faith efforts and available resources to follow the minimum standard health protocols recommended by DSHS"; penalty recital under Tex. Gov't Code § 418.173); Executive Order GA-29 (July 2, 2020) ("Every person in Texas shall wear a face covering over the nose and mouth when inside a commercial entity or other building or space open to the public, or when in an outdoor public space, wherever it is not feasible to maintain six feet of social distancing from another person not in the same household"; in force July 3, 2020 to March 10, 2021); Executive Order GA-32 ¶ 1 (Oct. 7, 2020) ("shall operate at no more than 75 percent of the total listed occupancy of the establishment"; outdoors, "social distancing and other protocols must be followed"); Executive Order GA-18 ¶ 2 (Apr. 27, 2020) (Ex. TX-011) (the DSHS protocols incorporated with "should follow"); Executive Order GA-34 ¶¶ 1, 3 (Mar. 2, 2021; effective Mar. 10, 2021) ("there are no COVID-19-related operating limits for any business or other establishment"; every person "is strongly encouraged to use good-faith efforts and available resources to follow the Texas Department of State Health Services (DSHS) health recommendations"), from which date the State's protocol clause is a recommendation and the compulsion in Texas rests on Health and Safety Code chapter 81, Labor Code § 411.103, the general duty clause and the § 148.003 condition; Tex. Gov't Code § 418.173 (Ex. DUT-TX-012). ↩
  39. Executive Order No. 202.6 (Mar. 18, 2020) ("Each employer shall reduce the in-person workforce at any work locations by 50% no later than March 20 at 8 p.m."); Executive Order No. 202.31 (May 14, 2020) ("Such businesses or entities must be operated subject to the guidance promulgated by the Department of Health"); New York State Department of Health, Interim Guidance for Wholesale Trade (Ex. SEC-11-022) ("These guidelines are minimum requirements only"; "the workforce presence is limited to 50% of the maximum occupancy"); Executive Order No. 202.16 (Apr. 12, 2020) (face coverings for every essential employee in contact with the public, furnished at the employer's expense, one of the workplace infection-prevention and exposure-control requirements the State imposed beside the wholesale guidance's distancing and occupancy conditions). ↩
  40. Executive Order No. 122 ¶ 3 (Apr. 8, 2020) (effective Apr. 10, 2020) (Ex. SEC-11-020) ("Manufacturing businesses, warehousing businesses, and businesses engaged in essential construction projects must adopt policies that include, at minimum, the following requirements"); Executive Order No. 192 ¶ 1 (Oct. 28, 2020) (effective Nov. 5, 2020) (Ex. SEC-10-021) (every employer whose workforce is "physically present at a worksite to perform work is required to abide by the following requirements, at minimum"); N.J.S.A. App. A:9-45, A:9-49 (Ex. DUT-NJ-006). ↩
  41. Director of Health, Updated and Revised Order for Business Guidance and Social Distancing ¶¶ 2, 12-15 (May 29, 2020) (Ex. OH-025) ("All businesses and operations shall continue to comply with Social Distancing Requirements"; "Ensure minimum 6 feet between people, if not possible, install barriers"; "Businesses must require all employees to wear facial coverings"; "Employees must perform daily symptom assessment"; in force to Apr. 5, 2021); Director of Health, Stay Safe Ohio Order ¶¶ 8, 10-12 (Ex. OH-019) ("Businesses must require all employees to wear facial coverings"); Responsible RestartOhio, Manufacturing, Distribution & Construction sector requirements (Ex. SEC-11-030) (headed "Mandatory"); R.C. 3701.352, 3701.99(C) (Ex. DUT-OH-004, Ex. DUT-OH-005). ↩
  42. Executive Order 20-26 ¶¶ 4(a)-(b), 5 (May 1, 2020) ("On or before May 11, 2020, all Hoosier employers shall develop a plan to implement measures and institute safeguards to ensure a safe environment for their employees, customers, ... and members"; "All employers ... must comply with safety and health standards established and enforced by IOSHA"; ¶ 5: "All businesses and employers are encouraged to adopt and/or take the following actions: a. Allow as many employees as possible to work from home," recorded as a recommendation); Executive Order 20-48 (Nov. 13, 2020) ("Businesses shall require employees to wear face coverings"); Ind. Code 10-14-3-34 (Ex. DUT-IN-015, Ex. DUT-IN-002). ↩
  43. State Public Health Officer, Order of May 7, 2020, ¶¶ 2-3 (reopening "with certain modifications"; Californians engaging with reopened businesses "must, when they do so, continue at all times to practice physical distancing"); Cal. Code Regs. tit. 8, §§ 3205-3205.4 (effective Nov. 30, 2020) (Ex. SEC-11-027) (written COVID-19 Prevention Program), readopted June 17, 2021 (Ex. SEC-02-047); State Public Health Officer, Order of June 11, 2021, ¶ 4 (other guidance "will not be mandatory"); Cal. Gov't Code § 8665 (Ex. DUT-CA-007). ↩
  44. Executive Order No. 141 § 1(2) (May 20, 2020) (the "Core Signage, Screening, and Sanitation Requirements" are "the following actions which establishments open to the public under the terms of this Executive Order must follow," including "Conduct daily symptom screening of workers" and "Immediately isolate and remove sick workers"); Executive Order No. 138 § 3(B), (D) (May 5, 2020) (retail businesses "must"; all other businesses "are strongly encouraged to," recorded as a recommendation); Executive Order No. 147 § 3.5 (June 24, 2020) ("Retail Businesses must have all workers wear Face Coverings when they are or may be within six (6) feet of another person"; "Citations under this Section shall be written only to businesses or organizations that fail to enforce the requirement to wear Face Coverings"); N.C. Gen. Stat. § 14-288.20A (Ex. DUT-NC-004) (Class 2 misdemeanor). ↩
  45. Executive Order 20-123 § 1.B (May 14, 2020) (effective May 18, 2020) (in-store retail "may operate up to fifty (50) percent of their building occupancy and abide by the safety guidelines issued by the CDC and OSHA"; § 6, enforcement under Fla. Stat. §§ 252.47 and 252.50); Executive Order 20-139 § 2 (June 3, 2020) (the paragraph "is guidance and not enforceable under section 252.47, Florida Statutes"); Fla. Stat. §§ 252.47, 252.50 (Ex. DUT-FL-007, Ex. DUT-FL-008). ↩
  46. Tex. Health & Safety Code § 81.002 (Acts 1989, 71st Leg., ch. 678, § 1) (Ex. DUT-TX-001) ("The state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease."); §§ 81.081, 81.082 (Ex. DUT-TX-002) ("The department shall impose control measures to prevent the spread of disease in the exercise of its power to protect the public health"; "The control measures may be imposed on an individual, animal, place, or object"); § 81.087 (Ex. DUT-TX-006) (Class B misdemeanor for a person who "knowingly refuses to perform or allow the performance of certain control measures ordered by a health authority or the department"); § 81.085(h) (Ex. DUT-TX-005) (felony of the third degree for knowing failure or refusal "to obey a rule, order, or instruction of the department or an order or instruction of a health authority issued under a department rule and published during an area quarantine"); Tex. Penal Code §§ 12.22, 12.34 (Ex. DUT-TX-019); Tex. Gov't Code § 418.173 (Ex. DUT-TX-012) (a fine to $1,000 or confinement to 180 days, recited in every general order); Tex. Health & Safety Code § 341.091 (Ex. DUT-TX-017) (the sanitary code's offense, "Each day of a continuing violation is a separate offense"). ↩
  47. N.C. Gen. Stat. § 130A-144(f), (g) (Ex. DUT-NC-001) ("All persons shall comply with control measures, including submission to examinations and tests, prescribed by the Commission subject to the limitations of G.S. 130A-148"; a misdemeanor under § 130A-25(a), with imprisonment to two years under § 130A-25(b)); 10A N.C. Admin. Code 41A .0201(a), (b), (d) (Ex. DUT-NC-007) (the specified recommendations and guidelines "shall be the required control measures"; "Guidelines and recommended actions published by the Centers for Disease Control and Prevention shall supercede those ... and are likewise incorporated by reference, including subsequent amendments"), a rule that made the CDC's recommendations compulsory in North Carolina by its own command, which is how a recommendation is treated here. ↩
  48. Ind. Code 16-20-1-24(a), 16-20-1-25, 16-20-1-26 (Ex. DUT-IN-003) ("A person shall not institute, permit, or maintain any conditions that may transmit, generate, or promote disease"; an order under the section "may be enforced by injunction"); Ind. Code 10-14-3-34 (2020) (Ex. DUT-IN-015) (Class B misdemeanor through Apr. 14, 2021); Ind. Code 10-14-3-34 (2021), 34-28-5-4(b) (Ex. DUT-IN-002, Ex. DUT-IN-017) (Class B infraction, a judgment to $1,000, from Apr. 15, 2021). ↩
  49. R.C. 3701.81(C) (Ex. DUT-OH-007); R.C. 3701.352 (Ex. DUT-OH-004) ("No person shall violate any rule the director of health or department of health adopts or any order the director or department of health issues under this chapter to prevent a threat to the public caused by a pandemic, epidemic, or bioterrorism event"); R.C. 3701.99(C) (Ex. DUT-OH-005) (misdemeanor of the second degree); R.C. 3701.56 (Ex. DUT-OH-006) (sheriffs, police officers and health officials "shall enforce quarantine and isolation orders, and the rules the department of health adopts"). ↩
  50. N.Y. Pub. Health Law § 12(1)(a) (Ex. DUT-NY-001) ("a civil penalty of not to exceed two thousand dollars for every such violation"); § 12-b(1), (2) (Ex. DUT-NY-002) (wilful violation of a local board's order "is guilty of a misdemeanor"; wilful violation of the chapter or a regulation under it "is punishable by imprisonment not exceeding one year, or by a fine not exceeding ten thousand dollars or by both"); § 2100 (Ex. DUT-NY-007) ("Every local board of health and every health officer shall guard against the introduction of such communicable diseases as are designated in the sanitary code"); N.J.S.A. App. A:9-45, A:9-49 (Ex. DUT-NJ-006) (the Governor's orders "shall be binding upon each and every person within this State"; a violator "shall be adjudged a disorderly person and shall be subject to imprisonment for a term not to exceed 6 months or shall pay a fine not to exceed $1,000.00 or to both"); N.J.S.A. 26:1A-10 (Ex. DUT-NJ-005) ("Each violation of any provision of the State Sanitary Code shall constitute a separate offense and shall be punishable by a penalty of not less than $50 nor more than $1,000"); Cal. Health & Safety Code §§ 120175, 120275, 120295 (Ex. DUT-CA-002, Ex. DUT-CA-003) (the health officer "shall take measures as may be necessary to prevent the spread of the disease"; a person who "refuses or neglects to conform to, any rule, order, or regulation prescribed by the department respecting a quarantine or disinfection of persons, animals, things, or places, is guilty of a misdemeanor," each day a separate offense); Cal. Gov't Code § 8665 (Ex. DUT-CA-007) ("shall be guilty of a misdemeanor ... punishable by a fine of not to exceed one thousand dollars ($1,000) or by imprisonment for not to exceed six months or by both"); Fla. Stat. § 381.00315 (Ex. DUT-FL-001) ("Any person who violates any rule adopted under this section, any isolation or quarantine, or any requirement adopted by the department pursuant to a declared public health emergency, commits a misdemeanor of the second degree"); Fla. Stat. § 252.50 (Ex. DUT-FL-008). ↩
  51. 29 U.S.C. § 654(a)(1) (Ex. DUT-FED-001; copies in the State files, Ex. DUT-NY-017, Ex. DUT-FL-015); 29 C.F.R. §§ 1910.132, 1910.141 (Ex. DUT-FED-003, Ex. DUT-FED-005) ("Protective equipment ... shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary"; "All places of employment shall be kept clean to the extent that the nature of the work allows"); 29 U.S.C. § 666 (Ex. LAW-481); OSHA, Interim Enforcement Response Plan for Coronavirus Disease 2019 (Apr. 13, 2020) (Ex. AGY-FED-LABOR-IMMIGRATION-020) (citation under section 5(a)(1) measured against "the most recent Centers for Disease Control and Prevention (CDC) guidelines and OSHA's guidance"); OSHA 3990, Guidance on Preparing Workplaces for COVID-19 (Mar. 2020) (the general duty clause "requires employers to provide their employees with a workplace free from recognized hazards"; the guidance itself "creates no new legal obligations" and is recorded as a recommendation); U.S. Department of Labor, News Release (Sept. 10, 2020) (Ex. LAW-487) (the Smithfield general duty citation at "the maximum allowed by law"); OSHA National News Release (Jan. 8, 2021) (Ex. DUT-FED-067) (citations from 300 inspections through Dec. 31, 2020 with proposed penalties of $3,930,381, including failures to "Comply with the General Duty Clause"); OSHA Inspection No. 1501560 (citation issued Apr. 22, 2021) (Ex. DUT-FED-017) ("NAICS: 493110/General Warehousing and Storage"; general duty clause; $12,288 proposed); Sec'y of Labor v. Murrell-Rosario, OSHRC Docket No. 21-0432 (ALJ June 6, 2022) (Ex. DUT-FED-073) (a tax-preparation office; willful violation of section 5(a)(1) affirmed; the employer "had not protected its employees from the recognized hazard of SARS-CoV-2"); OSHA, Inspections with COVID-19 Related Violations (Ex. AGY-FED-LABOR-IMMIGRATION-033) (302 citation rows dated 2020 and 440 dated 2021); Tex. Lab. Code § 411.103 (Ex. DUT-TX-013); Cal. Lab. Code §§ 6400-6402 (Ex. DUT-CA-009); Cal. Code Regs. tit. 8, § 3203 (Ex. DUT-CA-011); Cal. Lab. Code §§ 6423, 6427-6429 (Ex. DUT-CA-010); N.Y. Labor Law § 200 (Ex. DUT-NY-013); N.Y. Labor Law § 218-b (Ex. DUT-NY-014, Ex. SEC-11-031) (plans due Aug. 5, 2021; Commissioner of Health designation of Sept. 6, 2021); N.J.S.A. 34:6A-3 (Ex. DUT-NJ-009); R.C. 4101.11, 4101.12 (Ex. DUT-OH-013, Ex. DUT-OH-014); Ind. Code 22-8-1.1-2, 22-8-1.1-27.1 (Ex. DUT-IN-005) (civil penalties to $7,000 for each violation and $70,000 for each repeated violation); N.C. Gen. Stat. § 95-129 (Ex. DUT-NC-005). ↩
  52. Tex. Civ. Prac. & Rem. Code § 148.003(a)(1)(B) (Ex. DUT-TX-015) ("A person is not liable ... unless the claimant establishes that ... the person who exposed the individual ... knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease that were applicable to the person or the person's business"); Act of June 14, 2021, 87th Leg., R.S., ch. 528 (S.B. 6), § 5(a) (Ex. DUT-TX-014) (chapter 148 applies "only to an action commenced on or after March 13, 2020"); Fla. Stat. § 768.38 (ch. 2021-1, § 1, Laws of Fla., Mar. 29, 2021; the act "applies retroactively and prospectively") (Ex. DUT-FL-012) ("The defendant made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued. ... If the court determines that the defendant made such a good faith effort, the defendant is immune from civil liability."). ↩
  53. Ind. Code 34-30-32-1(b), -6, -7, -8(b), -11 (Ex. DUT-IN-006) (Feb. 18, 2021, retroactive to causes of action accruing on or after Mar. 1, 2020; immunity withheld for "gross negligence or willful or wanton misconduct"; no compliance clause); S.L. 2020-89, § 1, N.C. Gen. Stat. § 99E-71(a)-(b) (Ex. DUT-NC-006) (gross negligence floor; "Every person shall provide, with respect to any premises owned by the person or under the person's possession, custody, or control, reasonable notice of actions taken by the person for the purpose of reducing the risk of transmission of COVID-19 to individuals present on the premises"); S.L. 2020-3, § 4.14, N.C. Gen. Stat. §§ 66-460 to 66-463 (May 4, 2020) (§ 66-460(a): "the following entities shall have immunity from civil liability: (1) An essential business that provides goods or services in this State"; § 66-460(b): the immunity "shall not apply if the injuries or death were caused by an act or omission of the essential business or emergency response entity constituting gross negligence, reckless misconduct, or intentional infliction of harm"; § 4.14(b): the section "applies to claims filed on or after March 27, 2020"); Am. Sub. H.B. 606, 133rd G.A., §§ 2-4 (Ex. DUT-OH-020) (immunity except for "reckless conduct or intentional misconduct or willful or wanton misconduct"; a government order, recommendation or guideline "shall neither create nor be construed as creating a duty of care"; by its terms reaching conduct from Mar. 9, 2020 "through September 30, 2021"). ↩
  54. N.Y. Pub. Health Law § 3082 (art. 30-D, from Apr. 3, 2020) (Ex. DUT-NY-016) (health care facilities and professionals "providing health care services in accordance with applicable law"), repealed Apr. 6, 2021 (L. 2021, ch. 96, Ex. DUT-NY-018); P.L. 2020, c. 18, § 1 (N.J. Apr. 14, 2020) (Ex. DUT-NJ-007) (health care professionals acting "in support of the State's response to the outbreak of coronavirus disease"); Cal. Evid. Code § 669 (Ex. DUT-CA-013) ("The failure of a person to exercise due care is presumed if: (1) He violated a statute, ordinance, or regulation of a public entity"). ↩