The governmental orders by layer
Six layers of orders reached the manufacturing industry in every quarter: the federal layer, which never lapsed; the fifty States, which closed the industry by list in March 2020, restarted it by order on conditions, re-tightened it in the winter of 2020-21 and kept workplace standards on it into the third quarter of 2021; the largest metros, which added their own closures, screening rules and, in the summer of 2021, their own face-covering and exposure-control orders; the sector regulators, State and federal, whose instruments were conditions on the production floor, the dock and the port; the counterparties, whose own orders limited the commerce this industry sells into and buys from; and the interconnected economy, by which orders anywhere limited commerce everywhere. This section inventories each layer with exhibit identifiers; the next applies them quarter by quarter. The terms used throughout are these: the Internal Revenue Service is the "Service"; the Government as litigant is the "United States"; Notice 2021-20 is the "Notice"; CARES Act § 2301(c)(2)(A)(ii)(I) and I.R.C. § 3134(c)(2)(A)(ii)(I), which read identically, are the "Suspension Clause"; this site's Orders Library is the "Library."
The universe
The governmental response to COVID-19 was not a handful of orders; it was the densest body of governmental commands on commerce, travel and assembly in the nation's history, and every count of it is a floor. By May 31, 2020, according to the Centers for Disease Control and Prevention, 42 States and territories had issued mandatory stay-at-home orders reaching 2,355 of the nation's 3,233 counties, and "most jurisdictions issued multiple orders."27 The Council of State Governments counted 2,065 executive orders issued by governors and State agencies between February 2020 and June 29, 2020 alone, before four of the six claimable quarters had begun.28 The Department of Health and Human Services' own dataset records 4,218 State and county policy-order entries between March 23, 2020 and August 31, 2021, 122 of them coded "Manufacturing," and its curators stopped coding in the spring of 2021.29 The COVID AMP database catalogued nearly 50,000 policy measures worldwide, including more than 20,000 at the United States national and State level, 95 percent of them issued before November 23, 2021, and approximately 8,000 issued by United States counties.30 The Kaiser Family Foundation's fifty-State files record that on September 21, 2021 twenty-five jurisdictions kept emergency declarations in force and eleven kept statewide face-covering requirements, airborne-transmission controls binding every indoor workplace in those States.31 The Library's own index is a floor of the same kind: it records the instruments and authorities The COVID Project has retrieved and verified, and it is not, and is not offered as, a count of the orders that reached any employer or of the orders issued nationally, which the sources above place in the tens of thousands. The position that few orders existed is not a close call on a contested record; it cannot be squared with the United States' own datasets.
The federal layer
On every day from March 13, 2020 through September 30, 2021 the United States itself, by statute, proclamation, published order, security directive, management directive, interim final rule and court order, limited commerce, travel and group meetings across the whole national economy, and the record of it is the Federal Register. For manufacturing the federal layer had four parts: the Defense Production Act orders and the export bar on the goods the industry makes and the goods its reopening orders required it to buy; the entry proclamations and land-border notices on the borders across which its inputs, its customers and its engineers move; the transport orders on every commute and every business flight; and the workplace and contractor orders on the federal government's own premises and contracts.
The second quarter of 2020 (with the March 13-31 run-up)
The President delegated Defense Production Act priority and allocation authority over "all health and medical resources" on March 18, 2020 (Executive Order 13909), hoarding-prevention authority on March 23 (Executive Order 13910) and further authority on March 27 (Executive Order 13911) (Ex. SEC-10-001; Ex. SEC-10-002; Ex. SEC-10-003); on March 27 he ordered General Motors "to accept, perform, and prioritize contracts or orders" for ventilators, and on April 2 he ordered 3M and six ventilator manufacturers to do the same (Ex. SEC-10-010; Ex. SEC-10-011; Ex. SEC-10-012); on April 3 he directed that scarce medical resources be allocated to domestic use (Ex. SEC-10-013), and FEMA's temporary final rule, effective April 7 (published April 10), provided that "no shipments of such designated materials may leave the United States without explicit approval by FEMA" (Ex. SEC-10-004); FEMA's Emergency Management Priorities and Allocations System took effect May 13 (Ex. SEC-10-007); on April 28 the President placed meat and poultry processing under Defense Production Act direction (Executive Order 13917) (Ex. SEC-10-005).32 The Department of Health and Human Services designated respirators, masks, gloves, gowns, ventilators and disinfectants as "scarce materials" on March 25 (Ex. FED-074).33 The Treasury and Customs and Border Protection postponed duty deposits for importers whose operations were "fully or partially suspended ... due to orders from a competent governmental authority limiting commerce, travel, or group meetings" (Ex. AGY-USCG-PORTS-066).34 The President suspended entry from China (February 2), Iran (March 2), the Schengen Area (March 13), the United Kingdom and Ireland (March 16) and Brazil (May 26) (Ex. FED-200; Ex. FED-201; Ex. FED-202; Ex. FED-203; Ex. FED-204), suspended most new immigrant entry from April 23 (Ex. FED-210) and the entry of H-1B, H-2B, L and J workers from June 24 (Ex. FED-211); the Department of Homeland Security closed the Canadian and Mexican land borders to all but "essential travel" at 11:59 p.m. on March 20 and renewed the closure monthly (Ex. FED-216; Ex. FED-239; Ex. FED-217; Ex. FED-218; Ex. FED-219; Ex. FED-240; Ex. FED-241; Ex. FED-242); the CDC suspended the introduction of covered persons at the land borders under Title 42 (Ex. FED-034; Ex. FED-035; Ex. FED-036).35 The Families First Coronavirus Response Act ordered every employer under 500 employees to pay leave to workers kept from work by quarantine orders, provider advice, symptoms or closed schools and child care from April 1 to December 31, 2020 (Ex. FED-170; Ex. FED-171).36 The Office of Management and Budget moved the executive branch to maximum telework (Ex. FED-264; Ex. FED-268), the Department of Defense stopped all movement of its personnel from March 16 (Ex. FED-281), the State Department cancelled every routine visa appointment in the world from March 20 (Ex. FED-327), USCIS closed to the public from March 18 to June 4 (Ex. FED-324; Ex. FED-325), and the federal courts suspended jury trials and closed courthouses (Ex. FED-295; Ex. FED-338; Ex. FED-317; Ex. FED-284).37 The Coast Guard's Marine Safety Information Bulletins, guidance to the maritime industry described here as such, told every arriving vessel to report illness aboard immediately and to keep crews from listed countries aboard and, from April 23, extended their infection-control measures to every arriving vessel (Ex. AGY-USCG-PORTS-006; Ex. AGY-USCG-PORTS-020); the Department of Transportation fixed the national airline network at federal minimums from April 7 (Ex. AGY-AVIATION-SURFACE-028).38 The CISA Essential Critical Infrastructure Workforce guidance, "advisory in nature" by its own words, was the roster to which every State closure order pointed, and it acquired force only through the State orders that adopted it (Ex. FED-394).39
The third quarter of 2020
Nothing in the federal travel or workplace layer changed. The proclamations continued; the Department of Homeland Security renewed the land-border closure on July 22, August 21 and September 23 (Ex. FED-220; Ex. FED-221; Ex. FED-222; Ex. FED-243; Ex. FED-244; Ex. FED-245); M-20-23 remained the governing federal workplace directive and the federal offices did not reopen; the FFCRA mandate ran the whole quarter and the Department of Labor reissued its rule on September 16 (Ex. FED-172); FEMA extended the export bar to December 31 on August 10 (Ex. SEC-10-008), and HHS extended the scarce-materials designation on July 30 (Ex. ECO-A-069); the President ordered on August 6 that essential medicines and their critical inputs be made in the United States (Executive Order 13944) (Ex. SEC-10-006); the CDC ordered on September 1 that no landlord "shall evict any covered person" (Ex. FED-022); the Northern District of California kept civil jury trials suspended through September 30 (Ex. FED-331; Ex. FED-332); the CDC's second count of the meat and poultry outbreak reached 16,233 cases in 239 facilities in 23 States (Ex. ECO-A-081).40
The fourth quarter of 2020
The Department of Homeland Security renewed the land-border closure on October 22, November 23 and December 22 (Ex. FED-223; Ex. FED-224; Ex. FED-225; Ex. FED-246; Ex. FED-247; Ex. FED-248); the CDC re-issued the Title 42 suspension under a final rule on October 13 (Ex. FED-037; Ex. FED-048); FEMA re-extended the export bar on December 31 to June 30, 2021 (Ex. SEC-10-009); the winter resurgence re-tightened the federal courts, the Northern District of Illinois suspending all jury trials "until further order of this Court" on November 13 and the District of New Jersey suspending all in-person proceedings from November 25 (Ex. FED-339; Ex. FED-303); Proclamation 10131 carried the immigrant and temporary-worker suspensions to March 31, 2021 (Ex. FED-213); the FFCRA mandate expired December 31, 2020.41
The first quarter of 2021
The new Administration continued every restriction and added the transport layer. Proclamation 10143 of January 25 continued the European, British, Irish and Brazilian suspensions without interruption and added South Africa (Ex. FED-207); Executive Order 13991 imposed workplace infection-prevention and exposure-control requirements, masks and distancing among them, on every person "in Federal buildings or on Federal lands" (Ex. FED-060), and M-21-15 provided that "[n]o Federal workplace should operate above 25% of normal occupancy standards" (Ex. FED-270); Executive Order 13998 directed the airborne-transmission controls, face coverings foremost, that the CDC and TSA then imposed in every mode of public transportation (Ex. FED-061); the CDC's global pre-departure testing order took effect January 26 (Ex. FED-042); the CDC's conveyance face-covering and exposure-control order took effect at 11:59 p.m. on February 1, 2021 "until further notice," enforced by criminal fines (Ex. FED-020), with the TSA's security directives on every transit agency, railroad, bus company, airline and airport (Ex. FED-050; Ex. FED-053; Ex. FED-054; Ex. FED-055); the Federal Railroad Administration imposed the same control in every rail yard, shop and terminal from March 1 (Ex. AGY-AVIATION-SURFACE-014); the Department of Homeland Security renewed the land-border closure on January 19, February 23 and March 19 (Ex. FED-227; Ex. FED-228; Ex. FED-229; Ex. FED-250; Ex. FED-251; Ex. FED-252); OSHA launched its National Emphasis Program on March 12, listing meat and poultry plants in its Appendix A and beverage, petroleum, wood-products and miscellaneous manufacturing in its Appendix B (Ex. SEC-10-014); the President found in Executive Order 14017 that the pandemic had exposed the fragility of the nation's supply chains and the Department of Commerce opened its semiconductor inquiry (Ex. ECO-A-072; Ex. ECO-A-073); and on March 11, 2021 Congress re-enacted the Suspension Clause for the third and fourth quarters of 2021 (Ex. FED-174).42
The second quarter of 2021
The United States was adding countries to the entry suspensions, not lifting them: Proclamation 10199 suspended entry from India effective May 4 (Ex. FED-208). The Department of Homeland Security renewed the land-border closure on April 22, May 24 and June 23 (Ex. FED-230; Ex. FED-231; Ex. FED-232; Ex. FED-253; Ex. FED-254; Ex. FED-255); TSA extended its surface directive through September 13, 2021, "including those already vaccinated" (Ex. FED-051); the Department of Transportation re-imposed minimum-service obligations on every carrier accepting ARPA assistance "through September 30, 2021" (Ex. AGY-AVIATION-SURFACE-035); OSHA's Healthcare Emergency Temporary Standard took effect June 21 on the industry's health-care customers (Ex. FED-080); M-21-25 required agency reentry plans by July 19 and thirty days' notice before any required return (Ex. FED-271); the White House's 100-day review found the "global semiconductor chip shortage" and the "six-week industry shutdown" of vehicle plants and established the Supply Chain Disruptions Task Force (Ex. ECO-A-101; Ex. ECO-A-102); the FEMA export bar expired by its terms on June 30, 2021 (Ex. SEC-10-009).43
The third quarter of 2021
The federal layer tightened. On July 1, 2021 the following were in force: the CDC conveyance order (Ex. FED-020) and SD 1582/84-21-01A (Ex. FED-051), with the aviation successors ratified at 86 Fed. Reg. 26825 (Ex. FED-056); the inbound-testing order (Ex. FED-042); Proclamations 9984, 9992, 10143 and 10199 (Ex. FED-200; Ex. FED-201; Ex. FED-207; Ex. FED-208); the DHS land-border prohibition under the June 23 notifications, in effect "at 12 a.m. Eastern Daylight Time (EDT) on June 22, 2021" until "11:59 p.m. EDT on July 21, 2021" (Ex. FED-232; Ex. FED-255); the Title 42 order (Ex. FED-037); the OSHA Healthcare ETS with compliance dates of July 6 and July 21 (Ex. FED-080; Ex. FED-081); the DPA delegations and the scarce-materials designation (Ex. SEC-10-001; Ex. SEC-10-002; Ex. SEC-10-003; Ex. ECO-A-070); the Department of Transportation's minimum-service order (Ex. AGY-AVIATION-SURFACE-035); the FRA face-covering and exposure-control order (Ex. AGY-AVIATION-SURFACE-014); Executive Order 13991 with M-21-15's non-occupancy provisions and M-21-25 (Ex. FED-060; Ex. FED-270; Ex. FED-271); the Department of Defense's travel restrictions of March 15, 2021 (Ex. FED-280); the conveyance order's face-covering requirement, one of its airborne-transmission controls, as the Coast Guard's bulletin applied it on every commercial vessel and at every sea port (Ex. FED-020; Ex. AGY-USCG-PORTS-037, the implementing bulletin) and the Coast Guard's vessel reporting and crew guidance (Ex. AGY-USCG-PORTS-035, described as such); the federal court orders of the Central District of California, the Northern District of Illinois, the District of New Jersey, the District of Maryland and the Northern District of California (Ex. FED-285; Ex. FED-297; Ex. FED-301; Ex. FED-302; Ex. FED-306; Ex. FED-313; Ex. FED-337). Inside the quarter: OSHA revised the National Emphasis Program on July 7 (Ex. SEC-10-015); HHS extended the scarce-materials designation on July 7 to November 15, 2021 (Ex. ECO-A-071); the public health emergency was renewed effective July 20 "[a]s a result of the continued consequences of the ... pandemic" (Ex. FED-016); the Department of Homeland Security renewed the land-border prohibition on July 22, August 23 and September 22 (Ex. FED-233; Ex. FED-234; Ex. FED-235; Ex. FED-256; Ex. FED-257; Ex. FED-258); the Safer Federal Workforce Task Force on July 29 reinstated masks in every federal building for all persons regardless of vaccination status in areas of substantial or high transmission, one of the workplace infection-prevention and exposure-control requirements it re-imposed alongside distancing and visitor limits, and required that "employees and onsite contractors must sign an attestation confirming their vaccination status," that "[v]isitors must provide information on their vaccination status," and that any federally hosted "in-person meeting, conference, or event that will be attended by more than 50 participants" first obtain agency-head approval (Ex. FED-272); the CDC replaced the Title 42 order on August 2 (Ex. FED-038); the President extended the 100 percent Stafford Act cost share on August 17, reciting "the nationwide emergency declaration of March 13, 2020" (Ex. FED-009); TSA announced SD 1582/84-21-01B on August 20, effective September 14, 2021 to January 18, 2022 (Ex. FED-052); the Coast Guard issued MSIB 02-21 Change 3, its bulletin applying the conveyance order at the ports, on September 2 (Ex. AGY-USCG-PORTS-038); the District of Arizona re-tightened its own workplace on September 7 because "the State of Arizona is experiencing another spike of COVID-transmission due to the Delta variant" (Ex. ECO-C-136); the President signed Executive Orders 14042 and 14043 on September 9, reciting that the public health emergency and the Proclamation 9994 emergency remained in effect (Ex. FED-063; Ex. FED-064); the Department of Transportation required every on-site contractor employee at its facilities to attest to vaccination or be tested from September 17 (Ex. AGY-AVIATION-SURFACE-040); the Task Force issued its contractor guidance on September 24 and OMB published its determination that compliance "will improve economy and efficiency by reducing absenteeism and decreasing labor costs for contractors and subcontractors" (Ex. FED-274; Ex. FED-275); and the Department of Commerce solicited data on "the current semiconductor shortage" on September 24 (Ex. ECO-A-077).44 The United States, which was tightening its own workplace rules, renewing its border prohibitions, replacing its Title 42 order and soliciting evidence of a national input shortage in July, August and September 2021, cannot maintain that no orders limiting commerce, travel or group meetings were in effect in that quarter; the position cannot be squared with the Federal Register. The revocation of the entry proclamations and the opening of the land borders to vaccinated travelers came on November 8, 2021, from the United States' own hand (Ex. FED-209; Ex. FED-236; Ex. FED-259).45
The fifty States
Every State and the District of Columbia issued force-of-law orders limiting commerce, travel or group meetings that reached manufacturing in the second quarter of 2020, and every one of the fifty-one had a force-of-law instrument reaching the industry's functions in force on September 30, 2021. The States divide, for this industry, into two groups. Twenty-five jurisdictions closed non-listed manufacturing outright, confining in-person operations to minimum basic operations, and then restarted it by order on a fixed date and on written safeguards. Twenty-six did not close the production floor but bound it by telework, minimum-staffing, distancing, protocol, face-covering, exposure-control and gathering orders, and closed its customers, its venues and its schools. The State table on this page carries the fifty-one rows; the analysis follows by group. Each face-covering and exposure-control order named below was one of the workplace infection-prevention and exposure-control requirements the jurisdiction imposed on every indoor workplace; where the same instrument compelled employee screening, distancing, capacity limits or the operator's duty to enforce, the text says so.
The closure States
Michigan closed every plant not "necessary to sustain or protect life" from 12:01 a.m. on March 24, 2020 and reopened manufacturing at 12:01 a.m. on May 11, 2020 only where "the facility ... has been prepared to follow the workplace safeguards" (Ex. MI-011; Ex. MI-026); the safeguards ran as gubernatorial orders to October 2, 2020 and as MIOSHA emergency rules from October 14, 2020 to June 22, 2021 (Ex. MI-031; Ex. SEC-10-024; Ex. AGY-ST-LABOR-WORKPLACE-062).46 Pennsylvania closed every business "that is not a life sustaining business regardless of whether the business is open to members of the public" from March 19, 2020, marked "No" beside most durable-goods manufacturing on its NAICS list, reopened counties in a yellow phase between May 8 and June 5, 2020, and bound every open business to a Worker Safety Order from April 19, 2020, a telework mandate from July 16, 2020 to April 3, 2021 and a face-covering and exposure-control order to June 28, 2021 (Ex. PA-002; Ex. PA-003; Ex. PA-006; Ex. PA-008; Ex. PA-016; Ex. PA-022; Ex. PA-035; Ex. PA-100).47 New York cut the in-person workforce of every business not on the Empire State Development list of "essential manufacturing" to zero from 8:00 p.m. on March 22, 2020, reopened manufacturing region by region from May 15 to June 8, 2020 under mandatory interim guidance at "50% of the maximum occupancy," cut the in-person workforce of every business not exempted as essential in a red zone to zero again from October 2020, ended its capacity ceilings on May 19, 2021 and its emergency on June 25, 2021, and then activated the HERO Act plans of every private employer on September 6, 2021 (Ex. NY-002; Ex. NY-003; Ex. SEC-10-026; Ex. NY-106; Ex. NY-008; Ex. NY-054; Ex. NY-049; Ex. SEC-10-031).48 Illinois confined essential manufacturing to "critical products and industries" and ordered every other business to "cease all activities within the State except Minimum Basic Operations" from 5:00 p.m. on March 21, 2020, reopened manufacturing on May 29, 2020 under distancing and face-covering requirements, capped every venue at fifty on June 26, 2020, ordered non-production employees remote and prohibited venue gatherings of any size from November 20, 2020, reached Phase 5 on June 11, 2021 and imposed face-covering and exposure-control requirements in every indoor public place again from August 30, 2021 (Ex. SEC-10-034; Ex. SEC-10-035; Ex. SEC-10-037; Ex. SEC-10-038; Ex. IL-037; Ex. SEC-10-036).49 Ohio ceased every business not exempted as essential except minimum basic operations from 11:59 p.m. on March 23, 2020, reopened manufacturing on May 4, 2020 under mandatory face coverings, daily symptom assessment and distancing, imposed a statewide face-covering requirement from July 23, 2020 and ended its health orders on June 2, 2021 (Ex. OH-011; Ex. SEC-10-048; Ex. OH-019; Ex. OH-030; Ex. OH-048).50 Wisconsin required every business not exempted as essential to "cease all activities" from 8:00 a.m. on March 25, 2020, declared that suppliers to non-essential businesses "are non-essential," lost its statewide order to the Supreme Court on May 13, 2020, imposed face-covering and exposure-control requirements on every workplace from August 1, 2020 to March 31, 2021 and left the Dane County and Milwaukee orders standing (Ex. WI-002; Ex. WI-003; Ex. WI-007; Ex. WI-009; Ex. WI-011; Ex. WI-021; Ex. WI-024).51 Minnesota limited critical manufacturing "to critical manufacturing workers listed in the CISA Guidance" from March 27, 2020, readmitted non-customer-facing industrial and manufacturing workers from April 27, 2020 only after the business had established a COVID-19 Preparedness Plan, required a plan of every business and work from home for every worker who could from May 18, 2020, and kept the plan requirement to June 30, 2021 (Ex. MN-010; Ex. SEC-10-044; Ex. SEC-10-045; Ex. MN-038).52 Massachusetts closed every non-essential workplace "to workers, customers, and the public" from noon on March 24, 2020, reopened manufacturing on May 18, 2020 under sector-specific standards in which "Face coverings are required for all workers," capped offices at 25 percent from December 26, 2020 to February 8, 2021 and rescinded its orders on May 29, 2021 (Ex. MA-008; Ex. MA-012; Ex. MA-015; Ex. SEC-10-046; Ex. MA-040; Ex. MA-048).53 Kentucky prohibited "in-person work that is not necessary to protect or sustain life" from March 26, 2020 and reopened manufacturing on May 11, 2020 under requirements it "must meet ... in order to reopen and remain open," ordered offices to 33 percent from November 20 to December 13, 2020 and ended the regime on June 11, 2021 (Ex. KY-010; Ex. SEC-10-050; Ex. SEC-10-051; Ex. SEC-10-053; Ex. KY-033; Ex. KY-049).54 Washington ordered "all non-essential businesses in Washington State [to] cease operations except for performing basic minimum operations" from midnight on March 25, 2020, reopened by county phase under the Safe Start manufacturing requirements (Ex. WA-034), which the Department of Labor and Industries made workplace law by emergency rule (Ex. AGY-ST-LABOR-WORKPLACE-050), capped offices at 25 percent from November 17, 2020, ended its caps on June 30, 2021 and required face coverings of every person from August 23, 2021 (Ex. WA-016; Ex. WA-017; Ex. WA-034; Ex. WA-047; Ex. WA-065; Ex. WA-072; Ex. WA-078).55 California ordered every resident to stay home except to maintain the federal critical infrastructure sectors from March 19, 2020, opened manufacturing statewide on May 8, 2020 under mandatory industry guidance, kept offices remote in its Purple and Red tiers and barred conventions in every tier from August 31, 2020, closed non-critical offices again under the Regional Stay at Home Order, issued December 3, 2020 and effective in the first regions December 6, 2020, to January 25, 2021, bound every employer to the Cal/OSHA emergency standard from November 30, 2020, ended the Blueprint on June 15, 2021 and readopted the standard on June 17, 2021 (Ex. CA-002; Ex. CA-007; Ex. CA-015; Ex. CA-017; Ex. CA-055; Ex. CA-020; Ex. SEC-10-039; Ex. CA-027; Ex. SEC-10-041).56 Connecticut ordered every business not exempted as essential to "reduce their in-person workforces at any workplace locations by 100%" from March 23, 2020 and every business to telework "to the maximum extent possible," reopened under binding sector rules from May 20, 2020 with a $10,000 penalty per capacity violation, quarantined every inbound traveler from July 24, 2020 to March 19, 2021 and ended its general rules on May 20, 2021 (Ex. CT-007; Ex. CT-014; Ex. CT-018; Ex. CT-033; Ex. CT-023; Ex. CT-046).57 Texas confined essential services to the federal CISA list and closed non-CISA manufacturing from 12:01 a.m. on April 2 to May 17, 2020 (Ex. TX-008). Vermont, Hawaii, Delaware, Colorado, New Mexico, New Hampshire, Idaho, Montana, Alaska, North Carolina, Maryland and the District of Columbia closed non-listed manufacturing between March 23 and March 30, 2020 and reopened it between April 24 and June 21, 2020 under conditions recorded in the State table on this page (Ex. VT-010; Ex. HI-004; Ex. DE-005; Ex. CO-012; Ex. NM-006; Ex. NH-009; Ex. ID-003; Ex. MT-009; Ex. AK-013; Ex. NC-005; Ex. MD-005; Ex. DC-005).58
The States that bound the floor without closing it
New Jersey did not close manufacturing; it ordered every business to accommodate telework "wherever practicable" and cut on-site staff to "the minimal number necessary" from March 21, 2020, imposed the first manufacturing-specific protocol in the nation on April 10, 2020, bound every in-person worksite to distancing, masks, hygiene breaks and daily health checks from November 5, 2020, and rescinded the telework mandate and the indoor workplace face-covering rules effective June 4, 2021 while carrying the worksite requirements for unvaccinated and unverified employees past that date (Ex. SEC-10-023; Ex. SEC-10-020; Ex. SEC-10-021; Ex. SEC-10-022; Ex. NJ-050).59 Oregon prohibited work in offices "whenever telework and work-at-home options are available" from March 23, 2020, bound every workplace to Oregon OSHA's rule from November 16, 2020, made it permanent on May 4, 2021, ended its county tiers on June 30, 2021 and renewed the universal face-covering requirement of its workplace rule, one of that rule's occupational-health and airborne-transmission controls, on August 13, 2021 (Ex. OR-007; Ex. SEC-10-054; Ex. SEC-10-055; Ex. OR-043; Ex. OR-048; Ex. SEC-10-056).60 Virginia told every business to "use telework as much as possible" from March 24, 2020, confined every resident to home from March 30 to June 10, 2020, adopted the first State workplace standard on July 27, 2020, made it permanent on January 27, 2021 and amended it on September 8, 2021 (Ex. VA-004; Ex. VA-006; Ex. SEC-10-042; Ex. SEC-10-043).61 Rhode Island required "[a]ll business service personnel that can work from home" to do so from March 23, 2020, imposed face-covering and exposure-control requirements on every workplace from April 18, 2020 to June 2, 2021 and on unvaccinated persons and every transit rider to July 6, 2021, and conditioned every establishment's opening on a written plan under a health regulation with closure power to August 31, 2021 (Ex. RI-006; Ex. RI-015; Ex. RI-042; Ex. RI-044; Ex. RI-047; Ex. RI-071).62 Texas, having reopened its plants on May 18, 2020, quarantined arriving travelers from March 28 to May 21, 2020, required face coverings of every person "inside a commercial entity" from July 3, 2020 to March 10, 2021, rolled every business in eighteen of twenty-two trauma service areas to 50 percent in the winter of 2020-21 and, having ended operating limits on March 10, 2021, issued GA-38 with force of law on July 29, 2021 (Ex. TX-008; Ex. TX-006; Ex. TX-022; Ex. TX-025; Ex. TX-029; Ex. TX-036).63 Georgia confined non-critical businesses to minimum basic operations with "teleworking for all possible workers" from April 3, 2020, kept a fifty-person gathering ban and mandatory sector protocols to April 7, 2021 and "shall implement" duties to May 30, 2021 and, by Executive Order 05.28.21.02 as extended, to 12:00 a.m. July 1, 2021, and re-imposed a mitigation duty on every in-person organization on August 19, 2021 (Ex. GA-010; Ex. GA-024; Ex. GA-034; Ex. GA-035; Ex. GA-038; Ex. GA-040; Ex. GA-043).64 Louisiana ordered every non-CISA business to "minimum contact with members of the public" and essential employees only from March 23, 2020, masked "[e]very individual in Louisiana" from July 13, 2020 to April 27, 2021 and again from August 4 to October 27, 2021 (Ex. LA-005; Ex. LA-014; Ex. LA-036; Ex. LA-038; Ex. LA-040).65 Alabama, Florida, Indiana, Iowa, Kansas, Missouri, Mississippi, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, Wyoming, Arizona, Arkansas, Maine and Nevada bound the floor by distancing, protocol, mask, gathering, travel and telework orders recorded in the State table on this page; Iowa "required [employers] to enable remote work where feasible" from November 11, 2020 to February 6, 2021 (Ex. IA-029); Utah required "all businesses ... to require employees and contractors to mask" from November 9, 2020 to April 10, 2021 (Ex. UT-029); South Dakota ordered on April 6, 2020 that "All employers ... shall" implement staggered shifts, flexible schedules and screenings (Ex. SD-009); Nevada named "manufacturing and food processing" essential, required face coverings of every person in every business from June 26, 2020 (Directive 024, Ex. NV-019) until Directive 045 of May 3, 2021 tied the duty to CDC guidance (Ex. NV-039), unvaccinated persons remaining under the face-covering duty, ended its capacity limits on June 1, 2021 (Ex. NV-074) and imposed face-covering and exposure-control requirements in every indoor public setting in sixteen of seventeen counties from July 30, 2021 (Ex. NV-004; Ex. NV-041; Ex. NV-042).66
The winter re-tightening of 2020-21
Every State but Florida tightened between October 2020 and January 2021, and Florida's courts stayed in Phase 2. For the production floor and the office the pattern was uniform: telework directives renewed or hardened (Illinois, Ex. SEC-10-038; Michigan, Ex. MI-054; Pennsylvania, Ex. PA-022; Minnesota, Ex. MN-032; Kentucky, Ex. KY-033; Iowa, Ex. IA-029; Washington, Ex. WA-047; Oregon, Ex. OR-033; Oregon county tiers, Ex. OR-035; Colorado offices at 10 percent in Level Red from 5:00 p.m. November 20, 2020, CO-037 (the Second Amended Public Health Order 20-36), with the dial levels revised by Ex. CO-081; California offices "Remote" in Purple and Red and closed under the Regional order, Ex. CA-055; Ex. CA-020; New Mexico's 100 percent in-person reduction from November 16 to December 1, 2020 (Ex. NM-039), with every county at Red from December 2 (Ex. NM-041); the District's businesses not exempted as essential "required to telework" from December 23, 2020 to January 22, 2021, Ex. DC-015); every indoor non-residential gathering prohibited in Michigan from November 18, 2020 to January 31, 2021 (Ex. MI-060; Ex. ECO-B-076; Ex. MI-062; Ex. MI-063) and every venue gathering prohibited in Illinois from November 20, 2020 (Ex. SEC-10-038); emergency workplace rules in Michigan (October 14, 2020), Oregon (November 16, 2020) and California (November 30, 2020) (Ex. SEC-10-024; Ex. SEC-10-054; Ex. SEC-10-039); new or restored statewide face-covering and exposure-control mandates in Iowa, North Dakota, Kansas, Utah, Montana, Wyoming, Hawaii, New Hampshire, Vermont and California (Ex. IA-030; Ex. ND-061; Ex. KS-036; Ex. UT-029; Ex. MT-018; Ex. WY-040; Ex. HI-016; Ex. NH-031; Ex. VT-027; Ex. CA-059); and Texas's automatic 50 percent rollback in eighteen of twenty-two trauma service areas (Ex. TX-025; Ex. TX-026).67 On January 1, 2021 every State except Florida, Kansas, Missouri and South Dakota (whose county and city orders carried the layer) was under a statewide instrument at least as restrictive as its June 30, 2020 regime, and Illinois, Michigan and Minnesota were under one more restrictive (Ex. SEC-10-038; Ex. MI-062; Ex. MN-032).68
The 2021 transition dates
The last statewide general instruments reaching manufacturing floors ended, by region, on these dates: Texas March 10, 2021 (Ex. TX-029); Arizona March 25 (Ex. AZ-037); Wyoming March 16 (Ex. WY-050); Mississippi March 3 (Ex. MS-051); South Carolina March 5 (Ex. SC-033); Alabama April 9 (Ex. AL-048); Georgia April 8, May 30 and 12:00 a.m. July 1 (Ex. GA-034; Ex. GA-035; Ex. GA-038; Ex. GA-040); Colorado April 16 (Ex. CO-051); West Virginia April 20 (Ex. WV-063); Indiana April 6 (Ex. IN-059); Utah May 4 (Ex. UT-043); Maryland May 15 and July 1 (Ex. MD-030; Ex. MD-031); North Carolina May 14 (Ex. NC-029); Connecticut May 20 (Ex. CT-046); Delaware May 21 (Ex. DE-038); Maine May 24 (Ex. ME-057); Louisiana May 26 (Ex. LA-032); New Jersey May 28 and June 4 (Ex. NJ-050; Ex. SEC-10-022); Massachusetts May 29 (Ex. MA-048); Pennsylvania May 31 and June 28 (Ex. PA-035; Ex. PA-100); Ohio June 2 (Ex. OH-048); New York June 15 and June 25 (Ex. NY-057; Ex. NY-049); Illinois June 11 (Ex. IL-037); Kentucky June 11 (Ex. KY-049); Vermont June 14 (Ex. VT-043); California June 15 (Ex. CA-027); Michigan June 22 (Ex. MI-076); Minnesota June 30 (Ex. MN-038); Oregon June 30 (Ex. OR-043); Washington June 30 (Ex. WA-065); New Mexico July 1 (Ex. NM-060); Rhode Island July 6 (Ex. RI-047); Hawaii December 1, 2021 and March 25, 2022 (Ex. HI-054; Ex. HI-055).69 In nine western States the general business restrictions were in force on the first day of the second quarter of 2021 and in five on its last day or into the third quarter; the restoration period described under continuing suspension therefore runs from a date inside the claimable quarters, and for New Mexico, Rhode Island and Hawaii from July 1, 2021 or later. The State workplace standards of California, Oregon and Virginia and New York's Labor Law § 218-b did not end; they were in force on September 30, 2021.
The preemption States and what carried their 2021 quarters
Texas (GA-34, GA-36 and GA-38), Florida (Executive Orders 20-244 and 21-102 and chapter 2021-8), Arizona (Executive Order 2021-06), Georgia (from April 3, 2020), Utah (HB 294), Iowa (HF 847) and Montana and Wyoming (by 2021 statute) limited or barred local orders at some point in the period, and New Jersey, Connecticut and Massachusetts barred conflicting or stricter local rules from the spring of 2020.70 In each of those States, and in the others whose legislatures or courts curtailed local authority in 2021, the 2021 quarters were carried by force-of-law instruments the State itself kept or issued: Texas's disaster declaration renewed monthly, GA-38 with its reporting mandates on "[e]very public or private entity" that tests, SB 968's permit condition on every business's dealings with customers, the Texas Education Agency's protocols and the Supreme Court of Texas's Fortieth Emergency Order (Ex. TX-038; Ex. TX-036; Ex. TX-032; Ex. TX-053; Ex. TX-040); Florida's section 381.00316, which from July 1, 2021 provided that "A business entity ... may not require patrons or customers to provide any documentation certifying COVID-19 vaccination" on pain of a $5,000 penalty, and its Department of Health's school quarantine rules (Ex. FL-030; Ex. FL-032; Ex. FL-033); Arizona's emergency and the six executive orders it kept in force to September 29, 2021 (Ex. AZ-044); Georgia's Economic Recovery emergency and Executive Order 08.19.21.03 (Ex. GA-041; Ex. GA-043); Kansas's KDHE quarantine list, in force to November 2021, and its facility testing order (Ex. KS-057; Ex. KS-052); Utah's Department of Health emergency and the Judicial Council's courthouse face-covering and exposure-control mandate from July 30, 2021 (Ex. UT-025; Ex. UT-051); Montana's statute barring every employer from conditioning employment on vaccination status (Ex. MT-072); Iowa's emergency proclamations reciting that strict compliance with Iowa law "would continue to prevent, hinder, or delay necessary action" and its courts' statewide face-covering and exposure-control order of August 27, 2021 (Ex. IA-039; Ex. IA-056); Tennessee's Executive Order 83 reinstating the health-care emergency because "hospitalizations are increasing" (Ex. TN-035); South Carolina's Provisos and its Supreme Court's Delta extension (Ex. SC-045; Ex. SC-055); Arkansas's Executive Order 21-14 emergency of July 29 to September 27, 2021 and its fourteen-day close-contact quarantine directive (Ex. AR-017; Ex. AR-073); Wyoming's HEA 93 governing every new health order from July 1, 2021 (Ex. WY-055).71 A statute that tells every business in a State what it may and may not require of its customers is not the absence of an order limiting commerce; it is one.
The largest metros
The county and city instruments reached manufacturing in two ways: in the spring of 2020, by closing plants before or alongside the States and by writing plant rules into local orders; and from July 2021, by reinstating indoor face-covering and exposure-control orders that governed every production floor, dock and office in the largest manufacturing metros of the country. Each reinstated order named below imposed a face-covering requirement as one of the airborne-transmission controls on every indoor workplace in the jurisdiction; where the order also compelled employer enforcement, screening, capacity limits or proof of vaccination, the text says so. New York City raised the in-person workforce reduction to 100 percent for every business not exempted as essential on March 25, 2020, three days after the State (Ex. MET-NYC-006), ran quarantine checkpoints at its boundary crossings from August 5, 2020 to May 22, 2021 (Ex. MET-NYC-008; Ex. MET-NYC-013), and from August 17, 2021 barred every covered entity from admitting a patron, employee or contractor without proof of vaccination (Ex. MET-NYC-017).72 Los Angeles County closed non-essential manufacturing from March 19, 2020, reopened suppliers of "lower-risk retail" on May 13, 2020 under protocol, required exposure reporting and mandatory quarantine of exposed employees throughout, and reinstated universal indoor face-covering and exposure-control requirements from 11:59 p.m. on July 17, 2021 (Ex. MET-LA-003; Ex. MET-LA-005; Ex. MET-LA-018); Pasadena followed on July 22 and Long Beach on July 17 (Ex. MET-LA-053; Ex. MET-LA-045).73 Chicago required every continuing manufacturer from May 29, 2020 to follow distancing requirements "including face coverings, staggered shifts and reduced line speeds," left every business duty of its reopening order standing when it lifted its capacity numbers on June 11, 2021, and imposed face-covering and exposure-control requirements in every indoor space from August 20, 2021, with Cook County following on August 23 (Ex. MET-CHI-007; Ex. MET-CHI-018; Ex. MET-CHI-026; Ex. MET-CHI-041).74 Detroit ordered daily entry screening with temperature checks, rotational shifts, barriers and shutdown of areas for cleaning at every plant from October 9, 2020, and Oakland and Wayne Counties issued screening orders and, in August 2021, school face-covering and exposure-control orders (Ex. MET-DET-001; Ex. MET-DET-013; Ex. MET-DET-015).75 Dallas County confined manufacturing to critical manufacturing with binding plant rules from April 2, 2020, rolled occupancy back to manufacturing facilities on December 3, 2020 and ordered face coverings in commercial entities from August 11, 2021 notwithstanding GA-38 (Ex. MET-DFW-011; Ex. MET-DFW-027; Ex. MET-DFW-028); Harris County ordered other-than-essential manufacturing to cease facility activities from March 24 to April 30, 2020 and imposed face-covering requirements in every school and child-care setting from August 12, 2021 (Ex. MET-HOU-005; Ex. MET-HOU-038).76 Philadelphia's regime ran past the Commonwealth's termination of the disaster emergency, kept business duties of contact tracing and worker isolation through the third quarter of 2021 and masked "[a]ny indoor setting" from August 12, 2021 (Ex. MET-PHL-018; Ex. MET-PHL-019).77 The San Francisco Bay Area's eight health jurisdictions closed every business not exempted as essential on March 16-17, 2020, three days before the State, and imposed face-covering and exposure-control requirements in every indoor space from August 3, 2021 (Ex. MET-SFO-001; Ex. MET-SFO-071; Ex. MET-SFO-010).78 St. Louis City and County closed non-essential manufacturing from March 23 to May 17, 2020 and imposed face-covering and exposure-control requirements in every indoor space from July 26, 2021 (Ex. MET-STL-021; Ex. MET-STL-069); Kansas City and Jackson County ceased non-essential manufacturing at physical locations from March 24 to May 10, 2020 and reinstated face-covering and exposure-control requirements from August 2 and August 9, 2021, Kansas City's by Mayor's Order 21-01 and, from August 19, by ordinance (Ex. MET-KC-001; Ex. MET-KC-002; Ex. MET-KC-045).79 Denver and the Tri-County Health Department closed non-critical manufacturing from March 24 to April 26 and May 8, 2020 and, in August and September 2021, ordered vaccination of personnel in covered entities and face coverings in schools (Ex. MET-DEN-005; Ex. MET-DEN-023; Ex. MET-DEN-024; Ex. MET-DEN-032).80 Seattle's counties applied the State's phases, and King County imposed face-covering and exposure-control requirements in every indoor space from September 7, 2021 (Ex. MET-SEA-002); Minneapolis, Saint Paul, Ramsey and Hennepin Counties required face coverings in their facilities from August 3, 2021 (Ex. MET-MSP-041; Ex. MET-MSP-051); San Diego County closed non-essential manufacturing unless done from home from April 9, 2020 and quarantined exposed workers by order through the third quarter of 2021 (Ex. MET-SAN-004; Ex. MET-SAN-024); Sacramento County imposed face-covering and exposure-control requirements in every indoor space with employer enforcement from July 30, 2021 (Ex. MET-SAC-015); Clark County, Nevada required face coverings of every employee of every business in indoor public spaces from July 22, 2021 (Ex. MET-LAS-006); New Orleans imposed face-covering and exposure-control requirements in every indoor space from July 31, 2021 and Jefferson Parish from August 4 (Ex. MET-MSY-027; Ex. MET-MSY-063); Honolulu confined every "Designated Business" to Exhibit B conditions for the whole of the third quarter of 2021 and conditioned entry on proof of vaccination from September 13 (Ex. MET-HNL-032; Ex. MET-HNL-035; Ex. MET-HNL-037); Baltimore City imposed face-covering and exposure-control requirements in every indoor location from August 9, 2021 (Ex. MET-BAL-017); Montgomery County from August 7 and Prince George's County from 5:00 p.m. August 8, 2021 (Executive Order No. 18-2021, issued August 5) (Ex. MET-DCM-023; Ex. MET-DCM-128, as recited in Ex. MET-DCM-047); Boston from August 27 (Ex. MET-BOS-013); Charlotte and Mecklenburg from August 18 and August 31 (Ex. MET-CLT-023; Ex. MET-CLT-001); Columbus reached "manufacturing, construction and agricultural workplaces where distancing is difficult" from September 14, 2021 (Ex. MET-CMH-048; Ex. MET-CMH-050); Atlanta and Savannah masked from July 28 and July 26 (Ex. MET-ATL-063; Ex. MET-ATL-016); Phoenix's courts required face coverings of every person from August 9 and Tucson enacted Ordinance 11869 on August 13 (Ex. MET-PHX-016; Ex. MET-PHX-002); Milwaukee required every non-essential facility to cease on-site activity from March 25 to mid-May 2020 (Ex. MET-MKE-030); Salt Lake and Summit Counties made the "Construction, General Contractors & Manufacturing" protocols mandatory from May 1, 2020 (Ex. MET-SLC-009; Ex. MET-SLC-045); Memphis required face coverings from July 13, 2021 and Shelby County's health orders were re-tightened in August 2021 (Ex. MET-BNA-058; Ex. MET-BNA-076); and Pittsburgh's courts required face coverings of every person from August 10, 2021 (Ex. MET-PIT-036).81
The sector regulators
Manufacturing has no single licensing board, and it did not need one to be regulated: the State occupational-safety agencies, the federal Occupational Safety and Health Administration, the Defense Production Act authorities, the Coast Guard, the port authorities, the Federal Railroad Administration, the Department of Transportation and the customs authorities each held statutory power over a function of every plant, and each exercised it because of COVID-19. The State-plan agencies of Virginia, Michigan, Oregon, California, Washington, Nevada and New Mexico operate OSHA-approved plans under 29 U.S.C. § 667 and bound private employers in place of federal OSHA; their standards outlived every Governor's general business restriction.82 Virginia's Safety and Health Codes Board found under Va. Code § 40.1-22(6a) that workplace exposures "constitute a grave danger to employees and employers in Virginia necessitating the adoption of an emergency temporary standard," adopted 16VAC25-220 on July 15, 2020, effective July 27, applying to "every employer, employee, and place of employment," made it permanent on January 27, 2021, amended it on September 8, 2021 and did not revoke it until March 23, 2022 (Ex. AGY-ST-LABOR-WORKPLACE-001; Ex. SEC-10-042; Ex. SEC-10-043).83 Cal/OSHA's Standards Board adopted 8 C.C.R. § 3205 on November 19, 2020, effective November 30, requiring of every employer a written COVID-19 Prevention Program, exclusion of cases and exposed employees with pay, testing, face coverings and distancing, readopted it on June 17, 2021 and did not replace it until February 3, 2023 (Ex. AGY-ST-LABOR-WORKPLACE-002; Ex. SEC-10-039; Ex. SEC-10-041).84 Oregon OSHA's OAR 437-001-0744 "applies to all employees working in places of employment" from November 16, 2020, became permanent on May 4, 2021 to "remain in effect until revised or repealed," was amended on June 30, 2021 by Administrative Order 5-2021 to suspend its general distancing and face-covering provisions while keeping its exposure-assessment, infection-control-plan, ventilation, notification, training and sanitation duties on every employer (Ex. OR-044), renewed the universal face-covering requirement of its workplace rule, one of that rule's occupational-health and airborne-transmission controls, on August 13, 2021 and added medical-removal benefits and enforcement of the Health Authority's face-covering rules on September 16, 2021 (Ex. SEC-10-054; Ex. SEC-10-055; Ex. SEC-10-056; Ex. SEC-10-057; Ex. AGY-ST-LABOR-WORKPLACE-021).85 Washington's Department of Labor and Industries adopted WAC 296-800-14035 on May 26, 2020, providing that "Where a business activity is prohibited by an emergency proclamation an employer [must not allow employees to perform work]" and that "Employers must comply with all conditions for operation required by emergency proclamation issued under RCW 43.06.220," and readopted it on July 6, August 23 and September 20, 2021 (Ex. AGY-ST-LABOR-WORKPLACE-050; Ex. AGY-ST-LABOR-WORKPLACE-054; Ex. AGY-ST-LABOR-WORKPLACE-055; Ex. AGY-ST-LABOR-WORKPLACE-056); it answers any suggestion that reopening-phase conditions were advisory.86 MIOSHA re-imposed Michigan's workplace rules by emergency rule on October 14, 2020, with a manufacturing-specific rule, a preparedness plan, daily screening, face coverings and a prohibition of in-person work "to the extent that their work activities can feasibly be completed remotely," extended them on April 13, 2021 and rescinded them on June 22, 2021 (Ex. SEC-10-024; Ex. AGY-ST-LABOR-WORKPLACE-062; Ex. AGY-ST-LABOR-WORKPLACE-063).87 New York's Legislature enacted the HERO Act on May 5, 2021, the Department of Labor published the standard and model plan on July 6, 2021 and required adoption by August 5, 2021 under 12 NYCRR part 840, and the Commissioner of Health activated every plan in the State on September 6, 2021 (Ex. SEC-10-029; Ex. SEC-10-028; Ex. SEC-10-031).88 New Mexico required every employer to report a positive test "[w]ithin four (4) hours" from August 5, 2020, and made the rule permanent on January 26, 2021 (Ex. AGY-ST-LABOR-WORKPLACE-027).89 Federal OSHA's National Emphasis Program of March 12, 2021 and its revision of July 7, 2021 targeted manufacturing plants for programmed inspection through the third quarter of 2021 (Ex. SEC-10-014; Ex. SEC-10-015).90 The CDC's conveyance order as the Coast Guard's bulletins applied it at the ports, the port authorities' gate rules, the Federal Railroad Administration's order and the Treasury and Customs and Border Protection rule governed the dock and the port as the operations section states (Ex. FED-020; Ex. AGY-USCG-PORTS-033, the implementing bulletin; Ex. AGY-USCG-PORTS-078; Ex. AGY-USCG-PORTS-081; Ex. AGY-AVIATION-SURFACE-014; Ex. AGY-USCG-PORTS-066).91 The paid-leave mandates of New York, New Jersey, Colorado, Massachusetts and California required employers to pay quarantined and exposed employees not to work through the end of the period (Ex. AGY-ST-LABOR-WORKPLACE-003; Ex. AGY-ST-LABOR-WORKPLACE-005; Ex. AGY-ST-LABOR-WORKPLACE-004; Ex. AGY-ST-LABOR-WORKPLACE-009; Ex. CA-061).92
The counterparties
Every counterparty class of a manufacturer was the addressee of orders, and each order limited the commerce this industry conducts with that class. Suppliers were closed by the State orders of the closure States and redirected by the Defense Production Act orders (above). Customers were closed by category: dealers, whose showrooms closed under the stay-at-home orders and whose motor-vehicle offices closed in nearly every State between March 16 and March 27, 2020 (the closures as the agencies announced them, Ex. AGY-ST-DMV-SOS-RECORDERS-018; the credential statutes and orders, Ex. AGY-ST-DMV-SOS-RECORDERS-043; Ex. AGY-ST-DMV-SOS-RECORDERS-006); retailers, whose non-essential stores closed in March 2020 and ran at percentage caps to the spring of 2021 (Ex. NY-125; Ex. IL-031; Ex. MI-060); contractors, whose sites were shut in New Jersey from April 10 to May 18, 2020, in Pennsylvania from March 19 to May 1 and 8, 2020, in Michigan to May 7, 2020, in New York City for the duration of the emergency and in Boston, Cambridge and Somerville by municipal moratoria (Ex. NJ-011; Ex. PA-002; Ex. MI-024; Ex. MET-NYC-050; Ex. MET-BOS-004); restaurants, whose dining rooms closed in every State between March 15 and 24, 2020 and ran at caps to June 2021; hospitals and dental practices, whose elective procedures were suspended by order in the spring of 2020 (Ex. NY-005; Ex. NJ-006; Ex. TX-004; Ex. OH-007; Ex. MN-005) and whose entrants were screened, masked and, from August 2021, vaccinated by order (Ex. FED-080; Ex. FED-156; Ex. ECO-B-083; Ex. ECO-B-055; Ex. ECO-B-030); schools and colleges, closed by order in every State in the spring of 2020; and federal agencies, at maximum telework from March 2020 and under the Task Force's contractor rules from July 29, 2021 (Ex. FED-268; Ex. FED-272).93 Venues were capped or closed in every State, and the convention centers of Chicago, New York, Boston and Orlando were converted to field hospitals, warehouses, testing sites and vaccination centers, as the authorities' own records and announcements show (Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-027; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-055; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-043; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-038).94 Travelers, including the industry's technicians and customers, were quarantined by at least eighteen States, the District and Chicago between March 2020 and April 2021, and by Hawaii through the whole period (Ex. NY-006; Ex. CT-023; Ex. MA-025; Ex. PA-021; Ex. HI-003; Ex. AK-012; Ex. NM-024; Ex. KS-057).95 Schools, child care and transit are treated under workforce availability above and under the interconnected economy below. Courts and clerks suspended jury trials, closed courthouses and tolled deadlines in every State and every federal district sampled, and the recorders and motor-vehicle offices closed with them (Ex. ECO-C-070; Ex. FED-338; Ex. FED-295).96 Health-care providers, the employer of last resort for every plant worker who needed testing, care or vaccination, were placed under the OSHA Healthcare ETS from June 21, 2021 and the CMS rules throughout (Ex. FED-080; Ex. FED-092; Ex. FED-094).97 Each of these is an order from an appropriate governmental authority limiting commerce, travel or group meetings, and the Notice's own supplier rule and the United States' own representation that "a business may be suspended 'due to' a government order addressing a third party" carry each of them into the manufacturer's proof.98
The standing duties
Beneath the six layers lay a body of law that bound every manufacturer on every day of the six quarters whether or not any order named it: the standing statutes that commanded every person to prevent and control communicable disease and every employer to furnish a safe and healthful workplace, the offenses for disobeying health and emergency orders, and the liability shields of 2020 and 2021 that 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, a legislature, a health department, a labor department and an occupational-safety agency are each an appropriate governmental authority, and the pandemic directives gave each its content.99 This subsection states the layer for eight States in which the industry is concentrated (California, Texas, Ohio, New York, Illinois, Pennsylvania, New Jersey and Michigan); the fifty-one-State table is on the standing duties page.
The first layer is in the orders already cited: no reopening order let a plant run unconditionally, and the verbs are commands. Michigan's restart provided that manufacturing work "may not commence under this subsection until the facility ... has been prepared to follow the workplace safeguards" (Ex. MI-026). New Jersey's manufacturers "must adopt policies that include, at minimum" the protocols listed (Ex. SEC-10-020). Pennsylvania authorized in-person operations "provided that the businesses fully comply with all substantive aspects of" the Building and Worker Safety Orders (Ex. PA-010; Ex. PA-011). New York's reopened businesses "must be operated subject to the guidance promulgated by the Department of Health" (Ex. NY-022). Illinois's manufacturers "shall comply with Social Distancing Requirements" (Ex. IL-005). Ohio's closed sectors "may reopen, subject to the Sector Specific COVID-19 Information and Checklist" (Ex. OH-019). California's sectors "may reopen with certain modifications" (Ex. CA-015). Texas: "Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy of the establishment" (Ex. TX-021). The orders kept the line between command and recommendation: Texas incorporated the DSHS minimum standard health protocols with "should" (Ex. TX-011); they are treated here as recommendations made compulsory by the safe-workplace statute, the general duty clause and the shield's condition, never as commands in themselves.100
The second layer predates the pandemic and outlasted every reopening order. 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." (Ex. DUT-TX-001). Refusing a control measure is a Class B misdemeanor (Ex. DUT-TX-006), and the Labor Code commands that "Each employer shall" provide "a place of employment that is reasonably safe and healthful for employees" and use "methods of sanitation and hygiene" (Ex. DUT-TX-013). The other seven carry the same three commands.101 California: "Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein" (Ex. DUT-CA-009). Michigan: "An employer shall: (a) Furnish to each employee, employment and a place of employment that is free from recognized hazards," under which MIOSHA issued its emergency rules (Ex. DUT-MI-013; Ex. MI-054). Ohio's frequenter statute, Pennsylvania's General Safety Law, New York's Labor Law § 200 and New Jersey's Worker Health and Safety Act command the same, each in "shall" (Ex. DUT-OH-013; Ex. DUT-PA-006; Ex. DUT-NY-013; Ex. DUT-NJ-009), and Illinois, from August 7, 2020, by a health rule enforced as a Class A misdemeanor, commanded every business open to the public or to employees to require face coverings where six feet could not be kept, one of the workplace infection-prevention and exposure-control requirements it imposed (Ex. DUT-IL-004; Ex. DUT-IL-014). Over all eight stood 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 to his employees" (Ex. DUT-FED-001). OSHA told employers in March 2020 that the clause "requires employers to provide their employees with a workplace free from recognized hazards" (FED-088) and enforced it by citation from September 10, 2020 (Ex. LAW-487; Ex. DUT-FED-073).102
The third layer is the legislatures' own statement of what a business owed. Texas protects a business from a pandemic exposure claim unless the claimant proves that it "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols," for every action commenced on or after March 13, 2020 (Ex. DUT-TX-015; Ex. DUT-TX-014). Michigan immunizes "A person who acts in compliance with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19," and wrote the same condition into the MIOSHA Act (Ex. MI-056; Ex. DUT-MI-015). Ohio set a culpability floor without a compliance clause and provided that "A government order, recommendation, or guideline shall neither create nor be construed as creating a duty of care upon any person"; Ohio's compulsion lies in R.C. 3701.352, 3701.81(C) and 4101.11 and in the orders (Ex. DUT-OH-020). The other five enacted no general business shield, and what they did instead states the standard of care: California's one shield bill, conditioned on compliance with all applicable health laws, regulations and protocols, died in committee, leaving the Evidence Code's presumption of negligence from violation of a statute or regulation (Ex. DUT-CA-017, legislative history; Ex. DUT-CA-013); Illinois made its workers' compensation presumption rebuttable by proof, among other grounds, that the employer was "engaging in and applying to the fullest extent possible or enforcing to the best of its ability industry-specific workplace sanitation, social distancing, and health and safety practices" based on updated guidance of the Centers for Disease Control and Prevention or the Illinois Department of Public Health (Ex. DUT-IL-005; Ex. DUT-IL-006); Pennsylvania's Governor vetoed the shield bill because "providing immunity for a business that does not rigorously comply with public health orders does not ensure the safety of the public" (Ex. DUT-PA-011; Ex. DUT-PA-012, legislative history); and New Jersey and New York shielded health-care providers only, New York on condition that the services were provided "in accordance with applicable law" and New Jersey for services "in support of the State's response" (Ex. DUT-NJ-007; Ex. DUT-NY-016; Ex. DUT-NY-018). In all eight the premise is the same: compliance with the governmental health standards is what a business owed, and a manufacturer that met them was complying, not choosing.103
The interconnected economy
"Commerce" is trade and the exchange of goods and services, and in the United States it is interstate and international by nature; the Suspension Clause reaches the mechanism by which orders anywhere limited commerce everywhere. Six mechanisms carried the orders into every function of every plant. First, supply chain and borders: from February 2, 2020 to November 8, 2021 the United States kept in force, without a day's interruption, federal orders limiting travel and commerce between every plant in the country and the countries that supply its inputs and buy its output (Ex. FED-200; Ex. FED-207; Ex. FED-209; Ex. FED-216; Ex. FED-236); in the spring of 2020 the States that hold the nation's manufacturing base closed it by order (Ex. MI-011; Ex. PA-002; Ex. NY-003; Ex. IL-005; Ex. OH-011; Ex. MA-008; Ex. IN-006; Ex. WI-002; Ex. WA-016; Ex. CA-002); the DPA orders and the export bar allocated the goods every reopening order required (Ex. SEC-10-004; Ex. SEC-10-009); and the chip, container and protein shortages the United States itself recorded in 2021 originated in those orders (Ex. ECO-A-101; Ex. ECO-A-100; Ex. ECO-A-110; Ex. ECO-A-081).104 Second, workforce, schools and child care: every State closed its schools by order in March 2020, Congress ordered every employer under 500 to pay leave to the parents, the States' quarantine directives and workplace standards excluded exposed workers by law, and the 2021-22 year opened under face-covering and quarantine orders in eighteen States and the District (Ex. ECO-B-073; Ex. FED-170; Ex. ECO-B-029; Ex. ECO-B-054).105 Third, travel, tourism and gatherings: the State quarantines, the venue caps and the federal cruise, funneling and gathering orders closed the shows and the visits (Ex. NY-006; Ex. SEC-10-037; Ex. NV-030; Ex. FED-272).106 The meetings table on this page lists, event by event, the trade shows, conventions and recurring gatherings of this industry that those orders disrupted in 2020 and 2021, with the venue jurisdiction's instrument in force on each event's dates and the organizer's stated action. Fourth, courts, clerks and public offices: the Supreme Court of Texas governed every proceeding to October 1, 2021, New York barred county clerks from accepting any non-essential filing, the federal districts kept jury trials suspended into the spring of 2021 and re-tightened in the summer, and the coordinated federal moratoria suspended the foreclosure function of every servicer to July 31, 2021 and the eviction function to September 30, 2021 (Ex. ECO-C-070; Ex. ECO-C-072; Ex. FED-339; Ex. FED-364; Ex. FED-379).107 Fifth, transit: from February 1, 2021 a federal order enforced by criminal fines governed every commute by bus, subway, rail, taxi and ride-share and every business flight, and in 2020 the transit agencies cut service and New Jersey capped every train and bus at half capacity (Ex. FED-020; Ex. FED-050; Ex. NJ-013; Ex. ECO-B-097).108 Sixth, health care as counterparty: the federal health-care orders reached every plant as the employer of workers who needed testing, isolation or vaccination, as the buyer of protective equipment in an allocated market and as the vendor whose entry into every hospital and nursing home was screened and conditioned (Ex. FED-074; Ex. FED-156; Ex. FED-080).109 The foreign governments' orders (Canada's discretionary-entry bar on United States residents to August 9, 2021; Ontario's closure of every business not on Schedule 2 from March 24, 2020; Mexico's suspension of all non-essential activities from March 31 to May 30, 2020 and its semaforo thereafter; the European Union's list, from which the United States was removed on August 30, 2021; China's entry suspension from March 28, 2020; Japan's fourth state of emergency from July 12 to September 30, 2021; Malaysia's lockdown with manufacturing capped at 60 percent from June 1 to August 15, 2021; Vietnam's southern lockdowns to September 30, 2021; Taiwan's Level 3 alert from May 19 to July 26, 2021; the World Trade Organization's count of eighty export-restricting countries by April 23, 2020) are cited as the facts and circumstances in which the federal instruments limiting travel and commerce with those countries operated, never as orders of an appropriate governmental authority (Ex. FOR-001; Ex. FOR-004; Ex. FOR-005; Ex. FOR-006; Ex. FOR-009; Ex. FOR-014; Ex. FOR-022; Ex. FOR-027; Ex. FOR-032; Ex. FOR-033; Ex. FOR-035; Ex. FOR-037).110 The interconnected-economy section below states the mechanisms as they reached this industry's functions and gives the restoration arithmetic.