The governmental orders by layer
The orders that reached this industry came from every layer of government and every class of authority the Suspension Clause names (section 2301(c)(2)(A)(ii)(I) of the CARES Act, re-enacted as section 3134(c)(2)(A)(ii)(I) of the Internal Revenue Code; the statute page reads it element by element): the President and the federal agencies, the governors and State health officers, the State supreme courts, the officers of the largest metros, the State occupational-safety and licensing agencies, the recorders and secretaries of state, and the courts of the United States. This section inventories them by layer; the tables on this page tabulate them.
The universe
Between March 1 and May 31, 2020, forty-two States and territories issued mandatory stay-at-home orders covering 2,355 of the nation's 3,233 counties.14 On July 2, 2021, thirty-five States had emergency declarations in force and nine had statewide face-covering requirements in force as airborne-transmission controls on indoor public settings; on September 21, 2021, twenty-five States had emergency declarations and eleven had such requirements.15 The Library (this site's Orders Library) indexes the instruments The COVID Project retrieved and graded; that is a count of instruments indexed, not of the orders that reached any employer, and each exhibit is cited for what it says.
The federal layer
2020
The President proclaimed a national emergency on March 13, 2020 (Ex. FED-001). The Office of Management and Budget directed agencies on March 17 to "[m]aximize telework across the nation for the Federal workforce" and to "[a]ssess professional services and labor contracts to extend telework flexibilities to contract workers wherever feasible," and kept that posture through 2020 (Ex. SEC-12-003; Ex. SEC-12-004).16 The Tax Court closed its courthouse to the public from March 20, 2020, announced on March 23, 2020 the cancellation of every trial session through June 30 (the court's announcements, Ex. AGY-FED-LANDS-SCIENCE-COURTS-011 and Ex. AGY-FED-LANDS-SCIENCE-COURTS-012, cited as the record of those actions) and by Administrative Order 2020-02 of May 29, 2020 made every proceeding remote (Ex. AGY-FED-LANDS-SCIENCE-COURTS-005); the district courts of California, Maryland and Arizona suspended trials and grand jury proceedings in March 2020, the District of Colorado continued its trial suspension through July 6, 2020, and the District of New Jersey suspended in-person proceedings again from November 25, 2020 (Ex. FED-317; Ex. FED-312; Ex. ECO-C-057; Ex. FED-288; Ex. FED-303).17 The Patent and Trademark Office waived petition fees for missed deadlines on March 16, 2020 and extended patent and trademark deadlines under CARES Act § 12004 from March 31, 2020 (Ex. AGY-FED-LANDS-SCIENCE-COURTS-032; Ex. AGY-FED-LANDS-SCIENCE-COURTS-027; Ex. AGY-FED-LANDS-SCIENCE-COURTS-028).18 USCIS suspended all face-to-face services from March 18 to June 4 (Ex. FED-324); the Department of State suspended routine visa services worldwide on March 20 and resumed them only post by post from July 15, 2020 (Ex. FED-327; Ex. AGY-FED-LABOR-IMMIGRATION-061); Proclamation 10014 suspended immigrant entry from April 23 and Proclamation 10052 suspended H-1B, L-1, J and H-2B entry from June 24 to March 31, 2021 (Ex. FED-210; Ex. FED-211; Ex. FED-213); 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 (Ex. FED-170; Ex. ECO-B-001; Ex. ECO-B-002).19 The Securities and Exchange Commission exempted every public company from its filing calendar because of "limited access to facilities, support staff, and professional advisors."20
2021, first and second quarters
Executive Order 13991 (January 20, 2021) imposed occupational-health and airborne-transmission controls, face coverings and physical distancing among them, on federal employees, "on-site Federal contractors; and all persons in Federal buildings" (Ex. SEC-12-007); OMB Memorandum M-21-15 provided that "No Federal workplace should operate above 25% of normal occupancy standards" until June 10 (Ex. SEC-12-005; Ex. SEC-12-006); the CDC's conveyance order imposed airborne-transmission controls on every conveyance and transportation hub from February 1, requiring face coverings of every traveler and requiring every operator to refuse boarding to, and to disembark, any person without one (Ex. FED-020; Ex. FED-050); Proclamations 10143 and 10199 continued the entry suspensions (Ex. FED-207; Ex. FED-208); the Northern District of Illinois suspended jury trials to April 5 (Ex. FED-296); the Federal Circuit restricted public access to the National Courts Building from May 24, 2021, admitting persons other than court personnel and arguing counsel only on written request and under infection-prevention conditions, masking and distancing among them, that turned on vaccination status (Ex. AGY-FED-LANDS-SCIENCE-COURTS-074), continued through August 31 and October 31, 2021 (Ex. AGY-FED-LANDS-SCIENCE-COURTS-076; Ex. AGY-FED-LANDS-SCIENCE-COURTS-077).21
2021, third quarter
The six-quarters section states the quarter in full: Executive Order 13991 and the Task Force's Model Safety Principles of July 29, 2021 governed every federal workplace and onsite contractor (Ex. FED-272); Executive Order 14042 (September 9) required covered contracts to carry the clause under which covered contractors' workforces were to be vaccinated by December 8, 2021 (Ex. SEC-12-008; Ex. SEC-12-010); the federal courts remained closed to the public; the conveyance, border and entry orders were in force on every day (Ex. AGY-AVIATION-SURFACE-040).22
The fifty States
The industry's regime
In every State the industry's offices were reached first by the March 2020 closure or stay-at-home order, which in most States carried an express telework command for every business; then by reopening orders that capped office occupancy or continued the telework command; then, across the Northeast, Midwest and West, by a winter re-tightening; and then by a stepped expiry between March 10 and June 30, 2021. The fifty-State table on this page carries every jurisdiction with dates.23
The Northeast
The northeastern States ordered offices to telework or to zero in-person staff in March 2020 and held them under caps and telework mandates into the spring of 2021. New York: telework "to the maximum extent possible" and a one-hundred-percent in-person workforce reduction from March 22, 2020 (Ex. NY-002); offices at fifty percent to May 19, 2021 (Ex. NY-131); exposure-prevention plans from August 5, 2021 (Ex. NY-136).24 New Jersey: telework accommodation required March 21, 2020 to June 4, 2021 (Ex. NJ-004; Ex. NJ-051).25 Pennsylvania: closure of every business not life-sustaining from March 19, 2020 (Ex. PA-002); telework "[u]nless impossible" November 27, 2020 to April 4, 2021 (Ex. PA-022).26 Massachusetts: workplaces closed March 24, 2020 (Ex. MA-008); offices reopened only under the mandatory Office Spaces sector rules from May 25, 2020 (Boston June 1) at the occupancy the Division of Labor Standards protocols fixed, twenty-five and then fifty percent (Ex. MA-017), cut to twenty-five percent from December 26, 2020 (Ex. MA-040) and forty percent from February 8, 2021 (Ex. MA-043), and rescinded May 29, 2021 (Ex. MA-048).27 Connecticut: in-person workforces reduced "by 100%" from March 23, 2020 (Ex. CT-007); offices at fifty percent, with employees who can work from home to continue doing so, May 20, 2020 to May 20, 2021 (Ex. CT-069; Ex. CT-079; Ex. CT-087; Ex. CT-093; ended by Ex. CT-046 § 1). Rhode Island: remote work required from March 23, 2020 (Ex. RI-006); caps lifted May 21, 2021 (Ex. RI-040).28 New Hampshire: work from home "as much as practical" to May 7, 2021 (Ex. NH-021; Ex. NH-045). Vermont: remote work required March 24, 2020 and again from 10:00 p.m. November 14, 2020 to June 15, 2021 (Ex. VT-010; Ex. VT-034). Maine: remote work required May 31, 2020 to June 30, 2021 (Ex. ME-025; Ex. ME-060).29 Delaware: "[t]eleworking must be maximized" from 8:00 a.m. March 24, 2020 (Ex. DE-005); courthouse infection-prevention controls, universal face coverings from August 16, 2021 and weekly testing of unvaccinated judicial officers and employees from September 7, 2021 (Ex. AGY-ST-COURTS-062).30
The South
The southern States closed or confined offices in March and April 2020, and the preemption States among them carried the 2021 quarters through their courts, their emergency instruments and the Delta-wave orders of the summer of 2021. The District of Columbia: closures March 25, 2020 (Ex. DC-005); telework December 23, 2020 to January 22, 2021 (Ex. DC-015); indoor face coverings, with employer duties, as an airborne-transmission control on every indoor space from July 31, 2021 (Ex. DC-057).31 Maryland: closure March 23, 2020 (Ex. MD-005); residual orders to August 15, 2021 (Ex. MD-031).32 Virginia: telework directive of March 23, 2020, effective 11:59 p.m. March 24 (Ex. VA-004); workplace standard from July 27, 2020 through the third quarter of 2021 (Ex. VA-036; Ex. VA-037).33 North Carolina: telework directive March 30, 2020 (Ex. NC-005). Georgia: telework directive April 3, 2020 (Ex. GA-010); Economic Recovery State of Emergency from July 1, 2021 (Executive Order 06.30.21.01, June 30, 2021) (Ex. GA-041; Ex. GA-042), with the workplace-mitigation order of August 19, 2021 (Ex. GA-043).34 Florida: Safer at Home April 3 to May 4, 2020 (Ex. FL-010). Texas: remote telework required from April 2, 2020 (Ex. TX-008); caps ended March 10, 2021 (Ex. TX-029); Supreme Court emergency orders continuously from March 13, 2020 (Ex. TX-048; Ex. TX-040).35 Louisiana: stay-at-home March 23, 2020 (Ex. LA-005); indoor face coverings, with employer and school duties, as an airborne-transmission control on every indoor space from August 4, 2021 (Ex. LA-036). Tennessee: work-from-home directives April 2020 (Ex. TN-007). Kentucky: "[p]rofessional services firms must implement telecommuting and remote work to the fullest extent possible" from March 26, 2020 (Ex. KY-010); offices at fifty and then thirty-three percent (Ex. KY-017; Ex. KY-033).36 Alabama: stay-at-home April 4, 2020 (Ex. AL-013); employer duties to April 9, 2021 (Ex. AL-045). Mississippi: shelter-in-place April 3, 2020 (Ex. MS-009). Arkansas: emergency July 29 to September 27, 2021 (Ex. AR-017).37 South Carolina: "Home or Work" April 7 to May 4, 2020 (Ex. SC-013). Oklahoma: closures March 25 to April 24, 2020 (Ex. OK-006; Ex. OK-011). West Virginia: remote-work directive of March 23, 2020, effective 8:00 p.m. March 24 (Ex. WV-009).38
The Midwest
The midwestern States confined offices in March 2020, several re-closed or re-capped them in the winter of 2020-21, and Michigan bound them by occupational-safety rules. Illinois: Minimum Basic Operations from March 21, 2020 (Ex. IL-005); offices at fifty percent from November 20, 2020 (Ex. IL-031); indoor face coverings, an airborne-transmission control on every indoor public place, from August 30, 2021, paired in the same order with vaccination-or-testing duties for health-care, school and State-facility workers (Ex. IL-042).39 Indiana: stay-at-home and work-from-home directive of March 23, 2020, effective 11:59 p.m. March 24 (Ex. IN-006). Iowa: remote work required November 11, 2020 to February 6, 2021 (Ex. IA-029). Kansas: telework and Minimum Basic Operations March 30 to May 4, 2020 (Ex. KS-009).40 Michigan: in-person work barred March 24, 2020 (Ex. MI-011); remote work required June 1, 2020 (Ex. MI-031); MIOSHA Rule 5(8) October 14, 2020 to May 24, 2021 (Ex. MI-054).41 Minnesota: "[a]ll workers who can work from home must do so" March 27, 2020 to April 14, 2021 (Ex. MN-010; Ex. MN-037). Missouri: work from home "where feasible" April 6 to May 3, 2020 (Ex. MO-004). Nebraska: directed health measures to May 24, 2021 (Ex. NE-026).42 North Dakota: statewide face coverings, an airborne-transmission control carrying employer duties, under State Health Officer Order 2020-08 from November 14, 2020 (Ex. ND-061), with the Governor's companion capacity limits, both ended January 18, 2021 (Ex. ND-074). Ohio: work-from-home directive March 23, 2020 (Ex. OH-011). South Dakota: telework directive April 6, 2020 (Ex. SD-009). Wisconsin: Safer at Home March 25, 2020 (Ex. WI-002; extended by Emergency Order #28, Ex. WI-003); the Governor's statewide face-covering orders, airborne-transmission controls on every indoor setting from August 1, 2020 (Ex. WI-009), until Fabick v. Evers voided them on March 31, 2021 (Ex. WI-021).43
The West
The western States closed offices in March 2020, and California, Oregon and Washington bound them by occupational-safety standards from the autumn of 2020 through the third quarter of 2021. California: stay-at-home March 19, 2020 (Ex. CA-002); offices "Remote" in the Purple tier under the order issued August 28, effective August 31, 2020 (Ex. CA-017; Ex. CA-055); Regional Stay at Home Order December 5, 2020 to January 25, 2021 (Ex. CA-020); Cal/OSHA standards from November 30, 2020 through the third quarter of 2021 (Ex. CA-023; Ex. CA-024); general restrictions ended June 15, 2021 (Ex. CA-029).44 Arizona: telework policy mandatory May 16, 2020 to March 25, 2021 (Ex. AZ-019; Ex. AZ-037). Colorado: in-person work cut fifty percent from March 24, 2020 (Ex. CO-010); offices at ten percent from November 20, 2020 (Ex. CO-081).45 Washington: workplaces closed March 25, 2020 (Ex. WA-016); "Professional Services are required to mandate that employees work from home when possible" with offices at twenty-five percent from 12:01 a.m. November 17, 2020 (Ex. WA-047); framework to June 30, 2021 (Ex. WA-056; Ex. WA-065), replaced July 1, 2021 by Proclamation 20-25.14 (Ex. WA-072); WAC 296-800-14035 from May 26, 2020 through the third quarter of 2021 (Ex. AGY-ST-LABOR-WORKPLACE-050).46 Oregon: "Work in offices is prohibited whenever telework and work-at-home options are available" from March 23, 2020, in force as the baseline of every reopening order and, from December 3, 2020, of the four-tier county framework of Executive Order 20-66 until that framework was rescinded June 30, 2021 (Ex. OR-007; Ex. OR-017; Ex. OR-020; Ex. OR-033; Ex. OR-035; Ex. OR-043), last applied in the counties placed in the framework's most restrictive tier through May 6, 2021; Oregon OSHA temporary rule from November 16, 2020 (Ex. OR-032), made permanent May 4, 2021 (Ex. OR-041). New Mexico: "100%" of the non-essential workforce at home from March 24, 2020 (Ex. NM-006); caps to June 30, 2021 (Ex. NM-057), ended by the order of June 30, 2021 effective July 1 (Ex. NM-060).47 Nevada: stay-at-home order of March 31, 2020, effective April 1 (Ex. NV-012); Pause at twenty-five percent from November 24, 2020 (Ex. NV-030). Utah: teleworking directive March 27, 2020 (Ex. UT-004). Hawaii: stay at home and work from home March 25, 2020 (Ex. HI-004); traveler quarantine throughout (Ex. HI-003).48 Idaho: work from home directed March 25, 2020 (Ex. ID-003). Montana: minimum basic operations from March 28, 2020 (Ex. MT-009). Wyoming: Public Health Orders #1 and #2 from March 19 and 20, 2020 (Ex. WY-004; Ex. WY-005), continued every two weeks until the business restrictions were removed March 16, 2021 (Ex. WY-050; Ex. WY-051) and the school, child-care and event rules on May 31, 2021 (Ex. WY-058). Alaska: home and work-from-home mandate March 28 to May 22, 2020 (Ex. AK-013).49
The winter re-tightening and the 2021 transition
Between October 14 and December 26, 2020, seventeen jurisdictions re-closed or re-capped the industry's offices: California, Colorado, Illinois, Iowa, Kentucky, Massachusetts, Michigan (MIOSHA Rule 5(8), October 14), Minnesota, Nevada, New Mexico, Oregon, Pennsylvania, Rhode Island, Texas (GA-32's automatic fifty-percent rollback in eighteen Trauma Service Areas, Ex. TX-025; Ex. TX-026), Vermont, Washington and the District of Columbia. The re-tightening expired in steps from Iowa on February 6, 2021 through Texas (March 10), Pennsylvania (April 4), Minnesota (April 14), Colorado (April 16), Michigan (May 24), the northeastern States (May 19 to June 11), California (June 15), Oregon, Washington and Maine (June 30) and New Mexico (July 1, 2021).50 Where a State preempted local orders (Texas, Florida, Arizona and Georgia), the State's own courts and emergency declarations carried the 2021 quarters, and the federal layer applied in every one of them.51
The largest metros
The local instruments
New York City required telework and a one-hundred-percent reduction of in-person workforces from March 20 and 25, 2020 (Ex. MET-NYC-005; Ex. MET-NYC-006) and required proof of vaccination for indoor dining, fitness and entertainment from August 17, 2021, enforced from September 13 (Ex. MET-NYC-017). Los Angeles County ordered non-essential offices to "cease in-person operations until further notice" on December 30, 2020 (Ex. MET-LA-012) and by Health Officer order of July 16, 2021, effective July 17, reimposed indoor face coverings on every person and every establishment as an airborne-transmission control, with the vaccination, event and school provisions the same order carried (Ex. MET-LA-018). Chicago's Public Health Order 2020-1 and Cook County's telework order of December 11, 2020 reached every office (Ex. MET-CHI-001; Ex. MET-CHI-034).52 Dallas County's stay-home order and its order of August 11, 2021 requiring every commercial entity to adopt a health and safety policy with universal indoor face coverings (Ex. MET-DFW-005; Ex. MET-DFW-028), Harris County's Stay Home, Work Safe order (Ex. MET-HOU-005) and Montgomery County's indoor face-covering regulation, one of the airborne-transmission controls the county imposed on every indoor public space (Ex. MET-DCM-023), reached their metros.53 Philadelphia barred non-essential activity from 5:00 p.m. March 16, 2020 (Ex. MET-PHL-002), confined offices to remote operation under orders providing that "[r]educed efficiency ... does not constitute impossibility" (Ex. MET-PHL-011; Ex. MET-PHL-012), kept in-person office rules in the spring of 2021 (Ex. MET-PHL-013) and from August 12, 2021 placed every indoor space under airborne-transmission controls, requiring face coverings unless the establishment required proof of vaccination of everyone inside (Ex. MET-PHL-019); Atlanta's, Maricopa County's and Boston's orders reached theirs (Ex. MET-ATL-001; Ex. MET-PHX-023; Ex. MET-BOS-013).54 San Francisco's, Detroit's, Seattle's and King County's orders (Ex. MET-SFO-001; Ex. MET-SFO-011; Ex. MET-DET-001; Ex. MET-SEA-018),55 San Diego County's, Denver's and St. Louis's orders (Ex. MET-SAN-002; Ex. MET-DEN-027; Ex. MET-DEN-023; Ex. MET-STL-006)56 and New Orleans's remote-work and proof-of-vaccination orders and Honolulu's emergency orders (Ex. MET-MSY-003; Ex. MET-MSY-029; Ex. MET-HNL-004; Ex. MET-HNL-032) reached theirs.57
The sector regulators
The courts of the States
Every State's court of last resort or chief justice acted under express constitutional and statutory authority to suspend jury trials, close courthouses, refuse non-essential filings and convert proceedings to remote form, and the court orders of at least twenty-nine States remained in force in the third quarter of 2021.58 Delaware closed every courthouse to the public from March 23 to June 8, 2020 and from August 16, 2021 reimposed universal face coverings in every judicial facility, with weekly testing of unvaccinated judicial officers and employees from September 7 (Ex. AGY-ST-COURTS-024; Ex. AGY-ST-COURTS-062); Cook County barred jury trials from November 23, 2020 and kept the videoconference default through September 30, 2021 (Ex. AGY-ST-COURTS-033; Ex. AGY-ST-COURTS-034); California suspended every jury trial for sixty days on March 23, 2020 (Ex. AGY-ST-COURTS-069); Massachusetts's Seventh Updated Order took effect July 12, 2021 (Ex. AGY-ST-COURTS-080).59
Recorders, clerks, secretaries of state and notaries
The Cook County Clerk, the Maricopa County Recorder and the recording offices of San Diego, Dallas, Tarrant, Mecklenburg, Montgomery (Pennsylvania) and Fayette Counties closed their counters to the public in March 2020, as their closure notices record (Ex. AGY-ST-DMV-SOS-RECORDERS-052; Ex. AGY-ST-DMV-SOS-RECORDERS-054).60 Twenty-five States rewrote the law of notarial acts within weeks of the closures, and in eight States the regimes ran into the third quarter of 2021 (Ex. AGY-ST-DMV-SOS-RECORDERS-040; Ex. AGY-ST-DMV-SOS-RECORDERS-044).61 Motor-vehicle offices closed or went appointment-only in at least twenty States in March 2020, as their closure and appointment notices record (Ex. DC-082).62
Licensing boards and examinations
The Utah Supreme Court replaced the July 2020 bar examination with a diploma privilege (Ex. AGY-ST-TRADE-BOARDS-019); the District of Columbia Court of Appeals cancelled it, citing "the likelihood of continued or renewed prohibitions on large gatherings" (Ex. AGY-ST-TRADE-BOARDS-038); the February 2021 examination was remote in forty-one jurisdictions and the July 2021 examination in thirty (Ex. AGY-ST-TRADE-BOARDS-063; Ex. AGY-ST-TRADE-BOARDS-062).63 Prometric, the vendor that administers the CPA and other licensing examinations, closed every United States test center from March 17 to April 30, 2020 in compliance with the State closure orders, as the NASBA, AICPA and Prometric announcement records (Ex. AGY-ST-TRADE-BOARDS-033); Virginia's DPOR and California's DCA waived license-renewal and examination requirements from March 2020 into the third quarter of 2021 (Ex. AGY-ST-TRADE-BOARDS-022; Ex. AGY-ST-TRADE-BOARDS-050).64
Federal agencies and State labor agencies
The State occupational-safety agencies of Virginia, California, Oregon, Washington and Michigan bound every office in their States by standards carrying civil penalties; Nevada OSHA enforced the Governor's directives against every workplace as occupational-safety violations; and New Mexico's Environment Department bound every employer to report each positive case within four hours.65
The counterparties
Customers, venues, schools, transit and courts
The orders that reached the industry's customers are catalogued in the industry analyses of this site; those that reached its venues, its workforce's children, its commute and its transactions are the gathering, school, conveyance and court orders above.66 The meetings table on this page lists the conferences, conventions, examinations and recurring gatherings of this industry that those venue orders disrupted, with the organizer's stated action and the orders in force on each event's dates.
The ecosystem
The mechanisms
Six mechanisms carried the orders to this industry, each an order in its own right: supply chain and borders (the land-border notices, the entry proclamations, the Title 42 order); workforce, schools and child care (the FFCRA mandate, the school closures, the quarantine orders); travel and gatherings (the interstate quarantines, the DOT minimum-service orders, the gathering limits); courts and public offices; transit; and health care as counterparty (the health-care-worker vaccination orders from July 26, 2021).67 Foreign orders, including the national lockdowns of India and the Philippines that closed the offshore delivery centers of information-services firms, are facts and circumstances treated by category.68
The standing duties
Beneath the emergency orders lay a further layer that bound every employer in this industry on every day of the six quarters: the standing statutes that commanded every person to prevent and control communicable disease and every employer to furnish a safe and healthful workplace, the offenses that punished disobedience of health and emergency orders, and the liability shields that protected only the business that complied with governmental standards, guidance and protocols. Each is an order from an appropriate governmental authority: 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. The layer is stated here for eight States (Texas, Arizona, New York, Massachusetts, California, Nevada, Georgia and Florida); the fifty-one-jurisdiction table is on the standing duties page of this site.69
The first layer is the orders' own conditions of operating, and their 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" (Ex. TX-021), and, among GA-29's exposure-control requirements, "Every person in Texas shall wear a face covering over the nose and mouth when inside a commercial entity" (Ex. TX-022). Arizona: every business that "serves the public or is an employer shall develop, establish and implement policies based on guidance from the CDC, Department of Labor, Occupational Safety and Health Administration (OSHA) and ADHS" (Ex. AZ-019), a provision "enforced by law enforcement and regulatory agencies" (Ex. AZ-020). New York: "Each employer shall reduce the in-person workforce at any work locations by 50%" (Ex. NY-003); reopened businesses "must be operated subject to the guidance promulgated by the Department of Health" (Ex. NY-022; Ex. NY-131). Massachusetts: offices operated "provided they comply with all workplace safety rules and standards," which every business "must immediately adopt and maintain" (Ex. MA-017). California's sectors reopened only "with certain modifications" and "must ... continue at all times to practice physical distancing" (Ex. CA-015); Nevada's employers "must take proactive measures to ensure compliance with the social distancing and sanitation guidelines" (Ex. NV-016); Georgia's organizations "shall implement measures which mitigate the exposure and spread of COVID-19" (Ex. GA-017; Ex. GA-043); and in Florida "all persons in Florida shall limit their movements and personal interactions outside of their home" (Ex. FL-010). After a State converted its employer clause to a recommendation, the compulsion rests on the two layers that follow.70
The second layer is standing law. Texas states the duty on every person: "The state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease" (Health and Safety Code § 81.002, Ex. DUT-TX-001), with control measures that "may be imposed on an individual, animal, place, or object" (Ex. DUT-TX-002), a Class B misdemeanor for knowing refusal to perform or allow them (Ex. DUT-TX-006), a third-degree felony for disobeying a published order in an area quarantine (Ex. DUT-TX-005) and a fine and confinement for violating an emergency order (Ex. DUT-TX-012); the other seven States have their equivalents. The workplace-safety duty ran beside them. Section 5(a)(1) of the Occupational Safety and Health Act bound every private employer: "Each employer ... shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees" (Ex. DUT-FED-001). OSHA restated the clause to every employer in March 2020 (FED-088), cited employers under it from September 10, 2020 (Ex. LAW-487) and on April 8, 2021 cited a tax-preparation office, an office of this industry, for a willful violation of the clause, which the Review Commission's administrative law judge affirmed (Ex. DUT-FED-073). The States' statutes say the same: "Each employer shall" provide "a place of employment that is reasonably safe and healthful" and "take all other actions reasonably necessary" (Texas Labor Code § 411.103, Ex. DUT-TX-013); California Labor Code § 6400 (Ex. DUT-CA-009); "each employer shall establish an airborne infectious disease exposure prevention plan" (New York Labor Law § 218-b, Ex. DUT-NY-014); and their equivalents in the other States. California, New York, Massachusetts and Nevada wrote the pandemic duty into workplace rules with their own force of law (Ex. CA-023; Ex. NY-136; Ex. MA-017; Ex. AGY-ST-LABOR-WORKPLACE-032).71
The third layer is the liability shields, which fixed compliance as the standard of care. Texas protects a business unless the claimant proves it "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease," for every action commenced on or after March 13, 2020 (Ex. DUT-TX-015; Ex. DUT-TX-014); Arizona presumes good faith only for a business that "adopted and implemented reasonable policies related to the public health pandemic," retroactive to March 10, 2020 (Ex. DUT-AZ-010); Florida immunizes only a defendant that "made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance" (Ex. DUT-FL-012); Nevada's shield reaches only a business in substantial compliance with controlling health standards (Ex. NV-054). Georgia set a gross-negligence floor without a compliance clause (Ex. DUT-GA-012); New York and Massachusetts shielded health-care providers only, on compliance conditions (Ex. DUT-NY-016; Ex. DUT-MA-017); California enacted none, so that violation of "a statute, ordinance, or regulation of a public entity" was presumed negligence (Ex. DUT-CA-013). In each form the legislature's premise is the same: compliance with the governmental health standards is what a business owed.72
This analysis keeps the line the instruments drew. A protocol written in "should," the DSHS minimum standard health protocols among them (Ex. DUT-TX-020), is treated as a recommendation made compulsory only through the instrument that incorporated it: the order that conditioned operation on it, the shield that protected only the business that followed it, or the general duty clause that treated it as the recognized standard of abatement. An employer that emptied its office, distanced its floor, screened its staff and saw one customer at a time in that environment was not choosing; it was complying.73