The six quarters
In each of the six calendar quarters from the second quarter of 2020 through the third quarter of 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19 were in force on the first day and on the last day of the quarter, and those orders caused a temporary delay, interruption or termination of a more than nominal portion of the operations of restaurants, bars, caterers and food-service operators throughout the United States. This section takes the quarters in turn. For each of the first five it states the orders in force, the functions they reached and the finding in the words of Tri-State Memorial Hospital v. United States, No. 2:25-cv-0181-TOR, ECF No. 38 (E.D. Wash. May 28, 2026) (Tri-State); the exhibit numbers are carried in the notes. The third quarter of 2021 is written as a self-contained proof, because it is the quarter about which the Service's letters most often assert that nothing was in force.
The second quarter of 2020
The quarter's proof includes the orders of March 13 through March 31, 2020, because the credit reaches wages paid after March 12, 2020.92 By April 6, 2020, on-premises food and beverage service was prohibited by statewide order in forty-nine States and the District of Columbia, and by municipal ordinance in South Dakota's principal cities; on April 1, 2020 the statewide prohibition was in force in forty-five States and the District, with Georgia (6:00 p.m. April 3), Mississippi (April 3, after its March 24 ten-patron suspension), Nebraska (statewide April 3, after the Omaha-area orders of March 19) and Missouri (April 6) following within five days: Ohio from 9:00 p.m. March 15; New York, Illinois, Connecticut, New Jersey, Maryland, Washington, Michigan, Kentucky, Indiana, Delaware and New Hampshire from March 16; Massachusetts, Vermont, Louisiana, Minnesota, Colorado, Oregon, North Carolina, Rhode Island, Iowa and Pennsylvania from March 16-17; Virginia from 11:59 p.m. March 24 (EO 53, Ex. VA-004), after its ten-patron limit of March 17 (Ex. VA-002); Alaska, Maine, Utah, West Virginia, South Carolina, Alabama, Arkansas, Arizona, Texas, Nevada, North Dakota, Montana, California, Wyoming, Hawaii, Florida, Tennessee, Oklahoma and Georgia between March 17 and April 3; Mississippi from April 3; Missouri statewide from April 6; Kansas by county orders and the statewide stay-home order from March 30; Nebraska statewide by April 3; Wisconsin by Emergency Order 12 § 13; and South Dakota by municipal ordinance and the statewide employer directive of April 6.93 Every closure was accompanied by a stay-at-home or gathering order confining the industry's customers, by school closures that removed the workforce's child care and, from April 1, by the federal leave mandate.94 The largest cities closed dining rooms earlier and confined workforces further: New York City's Emergency Executive Order No. 100 and its 50 and 100 percent workforce reductions, the Bay Area's shelter orders and Los Angeles County's orders of March 16, Dallas County's and Harris County's stay-home orders of March 22-24, Philadelphia's Order No. 2, Chicago's Public Health Order 2020-1, Boston's declaration, Minneapolis's emergency regulations, King County's order of March 16, and the orders of Denver, St. Louis, Atlanta, New Orleans, Honolulu and San Diego between March 13 and March 20.95 The alcohol regulators implemented the closures and built the conditioned to-go substitute, and the gaming regulators closed the bars and restaurants inside every casino and disabled every video-poker device in Louisiana.96 The reopening, where it came before June 30, came at fixed percentages under mandatory conditions: Georgia April 27 at ten patrons per 500 square feet; Texas May 1 at 25 percent, May 22 at 50 percent, June 12 at 75 percent, and back to 50 percent from June 29 with every bar closed from noon June 26 (GA-28 ¶¶ 6-7, Ex. TX-021); Florida May 4 at 25 percent and May 18 at 50 percent with bars closed again June 26; Alabama May 11 with parties of eight and six feet between tables; Arkansas May 11 at one-third seating; Iowa May 1 at 50 percent; Louisiana May 15 at 25 percent and June 5 at 50 percent; Ohio May 21 indoors at ten per table; Colorado May 27 at 50 percent; Illinois May 29 outdoors only and June 26 indoors; Pennsylvania May 29 at 50 percent in the green phase; New York June 4-12 outdoors and 50 percent indoors outside the City, which stayed closed; Massachusetts June 8 outdoors and June 22 indoors; New Jersey June 15 outdoors only; Connecticut May 20 outdoors and June 17 at 50 percent; Washington at 50 percent in Phase 2 counties; Nevada May 9 at 50 percent with bar tops closed; Arizona May 11 with bars closed again June 29; California in variance counties from May 12; Michigan June 8 at 50 percent; Minnesota June 1 outdoors and June 10 at 50 percent.97 On June 30, 2020, every State that kept a statewide regime held its dining rooms under capacity, spacing, party-size, hours, seated-service or face-covering conditions (the last an exposure-control requirement on staff and guests alike), and Texas, Florida and Arizona had closed their bars again; in the four States whose statewide rules had lapsed (South Dakota, April 28; Wisconsin, May 13, by judicial decision; North Dakota, May 22; Kansas, May 26), the county and city orders in the Library's State and metro collections (Sioux Falls, Brookings and Rapid City; Dane County and Milwaukee; the Kansas City-area and other county orders in Kansas) carried the conditions.98
The operation of the dining room (DR) was terminated statewide from mid-March to late May or June, then interrupted by capacity percentages, table spacing and party limits; the bar (BA) was terminated by the closure orders, then conditioned on seated service, on food and on the regulators' emergency rules, and re-terminated in Texas, Florida and Arizona in the last week of June; takeout (TO) was the only permitted mode, conditioned on the to-go alcohol authorizations, sealed-container rules and hours limits; banquets (BQ) were terminated by the gathering bans (fifty, twenty-five, ten) and the venue closures; the kitchen (KT) was conditioned by Executive Order 13917 and the meat-plant and border orders; hiring and administration (HR and OP) were conditioned by telework mandates and the closure of licensing and certification offices; the workforce (WF) was conditioned by the stay-at-home orders, the school closures and the federal leave mandate; and the customer base (CB) was confined to home by order in forty-two jurisdictions.
During the calendar quarter beginning April 1, 2020 and ending June 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the statewide and municipal closure orders on on-premises food and beverage service, the stay-at-home and gathering orders, the alcohol regulators' emergency rules and the phased reopening orders with their capacity and spacing conditions (Ex. NY-010; Ex. IL-004; Ex. TX-003; Ex. TX-021; Ex. CA-002; Ex. WA-009; Ex. FL-008; Ex. OH-004; Ex. MA-005; Ex. NJ-004; Ex. PA-002; Ex. MI-005; Ex. GA-010; Ex. LA-003 and their counterparts in every State), caused a temporary termination and then interruption of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by prohibiting the dining room and the bar outright for the whole of the quarter's first half and by fixing the percentage, spacing, party size and hours at which they could reopen in the second.
The third quarter of 2020
On July 1, 2020, every State that had reopened dining rooms kept them under capacity and condition orders, and the bar re-closures of late June were in force: Texas's GA-28, with the Alcoholic Beverage Commission's suspension sweeps and its requalification process for bars seeking to operate as restaurants; Florida's Emergency Order 2020-09, with the Department's emergency suspensions of named vendors; Arizona's Executive Orders 2020-43 and 2020-52. The quarter added Michigan's bar closures of July 1 and July 31, Louisiana's statewide bar closure from July 13, California's statewide bar and indoor-dining closure of July 13 and its Blueprint tiers from August 31, Nevada's county bar closures from July 10, Kentucky's bar closure and 25 percent cap from July 28 to August 10, Washington's rollback of July 24-30, Pennsylvania's 25 percent cap and "bar service is prohibited" rule from July 16, Arizona's sub-50-percent cap from July 11, New Jersey's continuing indoor prohibition until September 4 and 25 percent thereafter, New York City's continuing indoor prohibition until September 30, New York's food-with-alcohol rule from July 17, Massachusetts' food-with-alcohol and gathering rules from August 11, Illinois' regional Tier 1 mitigations from August 18, Iowa's six-county bar closures from August 27 and its sworn compliance checklist from September 18, and the alcohol cutoffs of Ohio (10:00 p.m. from July 31), South Carolina (11:00 p.m. from July 11), North Carolina (11:00 p.m. from July 31), Alabama (11:00 p.m. from August 1), Mississippi (11:00 p.m. from July 24), Colorado (10:00 p.m. from July 23) and Virginia's Eastern Region.99 The metropolitan layer added Dallas County's bar-closure order of July 24 "until rescinded," Minneapolis's closure of bar areas from August 1, Chicago's liquor-sales cessation (9:00 p.m. from April 8, 2020; 11:00 p.m. from July 10) (Ex. MET-CHI-008), New York City's travel checkpoints and hotel rule, Philadelphia's indoor-dining rules of September 8, Montgomery County's local orders and the Salt River Pima-Maricopa curfew inside metropolitan Phoenix.100 Virginia's emergency temporary standard took effect July 27; Nevada OSHA published its enforcement process July 23; the federal leave mandate, Executive Order 13917, the entry proclamations and the land-border notices continued.101 On September 30, 2020, Texas's bars remained closed pending GA-32's county opt-in, Florida's had reopened at 50 percent only sixteen days earlier, New Jersey stood at 25 percent, New York City at 25 percent from that very day (Ex. NY-050), Illinois under regional mitigations, California on the tiers, and Tennessee's seated-only rule ended that night.102
The operation of the dining room (DR) was interrupted by capacity percentages in every State that had reopened and terminated again statewide in California from July 13, in New York City, in New Jersey until September 4 and in Kentucky for two weeks; the bar (BA) was terminated in Texas, Florida, Arizona, Louisiana, Michigan, Nevada's counties, Washington's bars from July 30, Dallas County, Minneapolis and Iowa's six counties, and interrupted everywhere by cutoffs of 10:00 and 11:00 p.m., seated-service and food-with-alcohol rules; banquets (BQ) were interrupted by gathering caps that ran, in most States, at fifty or below; takeout (TO) was conditioned by the to-go authorizations and their hours limits; hiring, administration and the workforce (HR, OP and WF) were conditioned by the workplace standards, the telework mandates and the continuing school closures of the 2020-21 year; and the customer base (CB) was confined by curfews and gathering limits. The Bureau of Labor Statistics' business response survey for July 20 to September 30, 2020 recorded that 19 percent of establishments "experienced a government-mandated closure."103
During the calendar quarter beginning July 1, 2020 and ending September 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the capacity, spacing, party-size, seated-service and hours orders on dining rooms, the bar-closure orders of Texas, Florida, Arizona, California, Louisiana, Michigan, Nevada and Kentucky, the alcohol regulators' cutoff and enforcement rules and the gathering caps (Ex. TX-021; Ex. FL-036; Ex. CA-010; Ex. LA-014; Ex. PA-016; Ex. AZ-024; Ex. NJ-034; Ex. OH-031; Ex. MI-040; Ex. NV-022; Ex. KY-025; Ex. MET-DFW-022 and their counterparts), caused a temporary interruption and, for the bar function, termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by fixing the number of guests a dining room could seat, the hours in which a bar could pour and the size of the event a caterer could serve.
The fourth quarter of 2020
On October 1, 2020, the capacity regimes of the third quarter continued, Texas's bars were closed pending county opt-in from October 14, Illinois' regional mitigations were suspending indoor service region by region, New York's Cluster Action Initiative zones closed or capped dining from October 6, and Wisconsin's Emergency Order 3 capped indoor occupancy at 25 percent from October 8.104 The winter re-tightening then closed indoor dining by order in Washington from November 18, Minnesota from 11:59 p.m. November 20, Illinois statewide from November 20, Michigan from November 18, Oregon statewide from November 18 to December 2 and in its highest-tier counties from December 3, New Mexico statewide from November 16 to December 1 and in Red counties from December 2, Kentucky from 5:00 p.m. November 20 to December 13, Colorado's Front Range from November 20, Pennsylvania from December 12, New York City from December 14, California in four of its five regions under the Regional Stay at Home Order (Southern California and the San Joaquin Valley from 11:59 p.m. December 6, Greater Sacramento from December 10, the Bay Area from December 17, to January 25, 2021) after its 10:00 p.m. curfew from November 21, Anchorage from December 1, St. Louis County from November 17, Philadelphia from November 20, Los Angeles County's outdoor dining from November 25, Montgomery County from December 15 and the District's indoor dining from 10:00 p.m. December 23.105 Where dining rooms stayed open they were curfewed and capped: Boston's rollback from December 16 (no bar seating, a ninety-minute limit, no live entertainment, gatherings of ten and twenty-five) (Ex. MET-BOS-010); Massachusetts' 9:30 p.m. mandatory closing with a nightly alcohol ban from November 6 and 25 percent from December 26; New Jersey's 10:00 p.m. indoor close and bar-seating ban from November 12; New York's 10:00 p.m. closing from November 13; Connecticut's 50 percent, parties of eight and closing times from November 6; Maryland's 10:00 p.m. to 6:00 a.m. closure from November 20; Virginia's Sixth Amended EO 67 from November 16 and EO 72 curfew from December 14; North Carolina's 9:00 p.m. alcohol cutoff and 10:00 p.m. closing under EO 181 from December 11; Ohio's 10:00 p.m. curfew from November 19 and banquet rules from November 17; Iowa's 10:00 p.m. closure, groups of eight and face coverings (its exposure-control conditions) from November 17; Nebraska's six-foot and seated-service measures from November 11; North Dakota's 50 percent and 10:00 p.m. mandate from November 16; Utah's 10:00 p.m. bar closures and High-county alcohol ban; Montana's 50 percent and 10:00 p.m. close from November 20; Wyoming's 10:00 p.m. closure from December 9; Vermont's 10:00 p.m. bar and social-club closure from November 14; Maine's 9:00 p.m. closing from November 20; Rhode Island's Pause at 33 percent with bar areas closed; Delaware's 30 percent from November 23 and 10:00 p.m. closure from December 14; Arkansas's 11:00 p.m. closing from November 20; Oklahoma's six-foot and 11:00 p.m. rule from November 19; Louisiana's Modified Phase 2 from November 25 with bars closed indoors; Nevada's Statewide Pause at 25 percent from November 24; Texas's GA-32 rollbacks in high-hospitalization trauma service areas; West Virginia's patron face-covering requirement from November 14, an airborne-transmission control on every dining room; Mississippi's continuing 11:00 p.m. alcohol ban; New Mexico's 10:00 p.m. alcohol close from October 16; and the Navajo Nation's four-month stay-at-home lockdown from November 16.106 The Kaiser Family Foundation's count on January 4, 2021 was seven States newly closed to indoor dining, twenty-two under new service limits, sixteen with bars closed and forty with statewide public face-covering orders.107 The Oregon OSHA all-workplace rule (November 16), the Cal/OSHA emergency standard (November 30), MIOSHA's emergency rules (October 14) and New Jersey's EO 192 (November 5) made the reopening conditions binding workplace law, and the federal leave mandate expired December 31, 2020.108
The operation of the dining room (DR) was terminated in fourteen States and the largest metros for some or all of the quarter's last six weeks, and curfewed and capped everywhere else; the bar (BA) was terminated in the closure jurisdictions and in Louisiana's, New Jersey's and Rhode Island's bar areas, and cut off at 9:00, 10:00 or 11:00 p.m. in most of the rest; the holiday season's banquets, receptions and parties (BQ) were prohibited by gathering caps of ten to twenty-five in most States; takeout (TO) was the only permitted mode again in the closure jurisdictions, with delivery-fee caps; hiring, administration and the workforce (HR, OP and WF) were conditioned by telework mandates ("Unless impossible"), MIOSHA's remote-work rule, school closures and quarantine orders; and the customer base (CB) was confined by curfews on residents in Ohio, California, North Carolina, Virginia, Massachusetts and elsewhere.109
During the calendar quarter beginning October 1, 2020 and ending December 31, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the indoor-dining closure orders of Washington, Minnesota, Illinois, Michigan, Oregon, New Mexico, Kentucky, Colorado, Pennsylvania, New York City, California, Anchorage, Philadelphia and Montgomery County, the curfew, alcohol-cutoff and capacity orders of the remaining States and Boston's rollback conditions and the gathering caps on the holiday season (Ex. WA-047; Ex. MN-032; Ex. IL-031; Ex. MI-061; Ex. OR-035; Ex. NM-039; Ex. KY-033; Ex. CO-037; Ex. PA-028; Ex. NY-039; Ex. CA-020; Ex. MA-033; Ex. NJ-037; Ex. NY-037; Ex. MD-021; Ex. VA-016; Ex. NC-023; Ex. OH-039 and their counterparts), caused a temporary termination and interruption of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so in the industry's most profitable season, and the orders' own terms fixed the dates on which the termination would begin to lift in January and February 2021.
The first quarter of 2021
On January 1, 2021, indoor dining was closed by order in California (to January 25), Washington (to January 11 and then under Healthy Washington Phase 1), Minnesota (to January 10), Illinois (Tier 3 to January 15-February 4), Michigan (to January 31), Pennsylvania (to January 4), New York City (to February 12), Oregon's highest-tier counties, New Mexico's Red counties, Colorado's Level Red counties (to January 4), Anchorage (to 8:00 a.m. January 1, then 25 percent), the District of Columbia (to 5:00 a.m. January 22), Philadelphia (to January 15), Los Angeles County's outdoor dining (to January 29), St. Louis County (to January 4), Montgomery County, and the Navajo Nation's businesses (to March 15).110 The remaining States ran the quarter under caps, curfews and seated-service rules: Massachusetts 25 percent to February 8 and 40 percent thereafter, with the 9:30 p.m. closing to January 25, and Boston's rollback conditions to March 1 and its six-per-party and no-live-music rules to March 22 (Ex. MET-BOS-016; Ex. MET-BOS-017); New Jersey 25 percent to February 5, 35 percent to March 19 and 50 percent thereafter, with the 10:00 p.m. close to February 5 and bar seating barred throughout; New York 10:00 p.m. closing to February 14 and 11:00 p.m. thereafter, with the City at 25 and 35 percent; Connecticut 50 percent, parties of eight and closing times to March 19, alcohol only with food throughout; Pennsylvania 25 and 50 percent with alcohol only with meals and an 11:00 p.m. cutoff to April 4; Maryland 50 percent and the 10:00 p.m. closure to February 1, seated-only from March 12; Virginia's EO 72 curfew to February 28 and its dining and gathering rules, as amended, to May 28 (Ex. VA-016; Ex. VA-033; Ex. VA-034); North Carolina's EO 181 to February 26, 30 percent bars from February 26 and 75 percent March 26; Delaware 30 percent and 10:00 p.m. closure to January 8, 50 percent from February 12; Ohio's curfew to February 11 and banquet cap to March 2; Iowa's groups of eight and face coverings to February 6; Indiana's seated service and six-foot spacing to April 5; Kentucky 50 percent, 11:00 p.m. cutoff and midnight close, 60 percent from March 1; Louisiana's Modified Phase 2 to March 3 and 75 percent thereafter; Texas's GA-32 tiers to March 9; Arizona's sub-50-percent cap to March 5; Nevada's Pause to February 15 and 35 and 50 percent thereafter; Colorado's Dial; Utah's High-county rules; Idaho's seated-only rule to February 1; Montana's limits to January 15; Wyoming's 10:00 p.m. closure to January 9 and groups of eight and ten to March 16; Maine's 9:00 p.m. closing to February 1; New Hampshire's face-covering order to April 16; Vermont's one-household tables to March 12; Rhode Island's 50 percent and 10:00 p.m. close; Alabama's six-foot spacing, party of eight and employer code to March 6 and April 9, with the ABC's 50 percent enforcement rule on licensed premises to about February 26 (Ex. AL-036; Ex. AL-045); Mississippi's rules to March 3; South Carolina's 11:00 p.m. alcohol ban to March 1 and face coverings to March 5; Tennessee's ten-person cap to January 19; West Virginia's patron face coverings and caps; Wisconsin's face-covering orders to March 31 (each of these an exposure-control requirement imposed on staff and guests with the capacity and spacing conditions beside it); Oklahoma's six-foot rule to March 12; Arkansas's 11:00 p.m. closing into January; and Georgia's bar caps and mandatory measures.111 The federal layer added the conveyance order and the airport directive from February 1, the pre-departure test order from January 26, Proclamation 10143 from January 26, the continuation of the national emergency, the OSHA National Emphasis Program targeting restaurants from March 12 and, on March 11, section 3134 itself.112 Virginia's standard became permanent January 27; the alcohol regulators extended their permits and relief.113
The operation of the dining room (DR) was terminated in the closure jurisdictions into January and February, then interrupted by caps of 25, 35, 40 and 50 percent and seated-only rules; the bar (BA) was conditioned by the bar-seating ban in New Jersey, the closure of Massachusetts' bars without food and the alcohol cutoffs at 10:00 and 11:00 p.m. in New York, Pennsylvania, Kentucky, South Carolina and elsewhere; banquets (BQ) were interrupted by the gathering caps that kept receptions and banquets at ten to fifty in most States; takeout (TO) continued under the to-go regime, with the alcohol-to-go statutes and orders extended; hiring, administration and the workforce (HR, OP and WF) were conditioned by the workplace standards, the telework mandates (Pennsylvania's to April 4), the school reopenings by phase and the federal conveyance order on the commute; and the customer base (CB) was confined by curfews and stay-home orders to late February in Virginia and North Carolina.
During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the indoor-dining closure orders that ran into January and February, the capacity, curfew, seated-service and alcohol-cutoff orders of every State, the alcohol regulators' license conditions and the federal conveyance order (Ex. CA-020; Ex. WA-104; Ex. MN-033; Ex. IL-033; Ex. MI-063; Ex. NY-040; Ex. MA-040; Ex. NJ-042; Ex. PA-022; Ex. CT-031; Ex. MD-024; Ex. VA-026; Ex. NC-023; Ex. FED-020 and their counterparts), caused a temporary termination and interruption of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so on every day of the quarter.
The second quarter of 2021
On April 1, 2021, capacity, spacing, hours and seated-service orders were in force on dining rooms in California (the tiers to June 15), Washington (Phase 3 at 50 percent with a midnight alcohol cutoff and bar seating closed to June 30), Oregon (county tiers to June 30), New Mexico (county colors to June 30), New York (50 and 75 percent with 11:00 p.m. and midnight closings; caps ended May 19 and the indoor curfew May 31), New Jersey (50 percent to May 19; six-foot spacing to May 28), Pennsylvania (50 and 75 percent to May 31; face coverings to June 28), Massachusetts (Phase IV Step 1 conditions to May 29), Connecticut (six-foot distancing, eight per table, 11:00 p.m. closing and bars closed to May 20), Maryland (seated service and distancing to May 15), Virginia (to May 28), the District (25 percent or 250 to May 21), Delaware (50 percent to May 21; duties to July 13), Rhode Island (caps to May 21; Department of Health dining rules to August 31), Vermont (to June 14), Maine (to May 24), New Hampshire (Emergency Order #52 to May 7), Illinois (Phase 4 and Bridge to June 11), Michigan (50 percent, a 100-person cap and an 11:00 p.m. close to June 22), Minnesota (75 percent and 250 to May 27), Ohio (seated service, six feet, ten per table and face coverings to June 2), Kentucky (60 and 75 percent to June 11), Louisiana (bars seated only and waiting areas closed to May 26), North Carolina (75 percent to May 14), Colorado (Dial to April 16), Alabama (to April 9), Georgia (mandatory measures to June 30), West Virginia (to April 20 and face coverings to June 20; the face-covering conditions of Pennsylvania, Ohio and West Virginia being exposure-control requirements imposed on staff and guests beside the seated-service and spacing conditions), Utah (to May 5), Hawaii's county tiers and Nevada's county plans.114 The federal conveyance order, Security Directive 1582/84-21-01A from May 12 and the ratification notice of May 18, Proclamation 10199 from May 4, the land-border notices, the National Emphasis Program and, from June 21, the OSHA Healthcare Emergency Temporary Standard on the industry's institutional counterparties ran through the quarter.115 The alcohol regulators' guidance, cited as their implementation of the orders and statutes named and not as orders, marked the transition: the State Liquor Authority's non-congregate guidance of May 19 and the expiration guidance of June 23; the Massachusetts Commission's end-of-restrictions advisory effective May 29 with outdoor allowances to August 15; the Illinois Commission's Phase 5 FAQ and renewal extension of June 11; Senate Bill 968's permit condition in Texas from June 16 (Ex. TX-032); Iowa's licensing relief to May 2; Texas's HB 1024 of May 12.116 Cal/OSHA readopted its standard June 17; Oregon OSHA made its rule permanent May 4 and amended it June 30; Massachusetts' Chapter 16 required forty hours of emergency paid sick leave from June 7; New Jersey's EO 243 of June 4 continued EO 192's worksite rules; Philadelphia's Spring, Further Reopening and Full Reopening Orders ran in sequence.117
The operation of the dining room (DR) was interrupted by caps and spacing in the largest States for all or most of the quarter, the limits ending in the Northeast between May 19 and May 31, in California June 15, in Michigan June 22, and in Oregon and Washington June 30; the bar (BA) was conditioned by bar seating closed in Washington to June 30, bars closed in Connecticut to May 20, alcohol cutoffs in New York to May 31 and seated-only bars in Louisiana to May 26; banquets (BQ) were interrupted by gathering caps that ran into May in most States; takeout (TO) was conditioned as the alcohol-to-go authorizations began to lapse (New York June 25) or were made permanent (Texas May 12); hiring, administration and the workforce (HR, OP and WF) were conditioned by the workplace standards, which continued in California, Oregon, Washington, Virginia, Michigan (to June 22) and New Jersey, and by the conveyance order on the commute; and the customer base (CB) was confined by the travel quarantines of Hawaii, Kansas and Rhode Island and by the entry proclamations.
During the calendar quarter beginning April 1, 2021 and ending June 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the capacity, spacing, hours and seated-service orders of California, Washington, Oregon, New Mexico, New York, New Jersey, Pennsylvania, Massachusetts, Connecticut, Illinois, Michigan, Minnesota, Ohio, Kentucky, Louisiana and their counterparts, the alcohol regulators' license conditions, the State workplace standards and the federal conveyance order (Ex. CA-017; Ex. WA-064; Ex. OR-035; Ex. NY-045; Ex. NJ-047; Ex. PA-033; Ex. MA-043; Ex. CT-046; Ex. IL-037; Ex. MI-068; Ex. MN-037; Ex. OH-070; Ex. KY-049; Ex. LA-029; Ex. FED-020 and their counterparts), caused a temporary interruption of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so on every day of the quarter: the federal conveyance order and the National Emphasis Program on every employer in the country, and the capacity, spacing, hours and seated-service orders in the States that hold most of the industry's establishments.
The third quarter of 2021
Between July 1 and September 30, 2021, the operation of the restaurant, bar, catering and food-service industry was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19. Orders in force on every day of the quarter governed the industry's commuting workforce, its traveling customers, its imported inputs, its workplace inspections, its outdoor premises, its liquor licenses and, in Hawaii, its every table and its indoor capacity; orders issued inside the quarter reinstated indoor face coverings on staff and patrons in seven States (Hawaii, Louisiana, Nevada, Oregon, Washington, Illinois and New Mexico) and the District of Columbia for every person, in California and Connecticut for the unvaccinated, and in more than thirty of the largest cities and counties, and conditioned entry to every restaurant and bar in New York City, San Francisco, New Orleans and Honolulu on proof of vaccination. The face-covering instruments are described in this analysis as what they were: workplace infection-prevention and exposure-control requirements, or occupational-health and airborne-transmission controls, imposed on the operator, its staff and its patrons, of which the face covering was one control; each arrived with the companion conditions the instrument named (the operator's duty to enforce and to post, the exclusion of the unmasked, seated-only service, distancing, verification of vaccination status), and subpart B states those conditions instrument by instrument. This section is written to be read alone.
A. The Service's premise about the quarter and what the statute asks
The Service's form letter states that "there were no government orders related to COVID-19 in effect during the quarter(s) you claimed ERC which could have fully or partially suspended your trade or business."118 For the third quarter of 2021 that sentence is measured against the instruments listed in subpart B, each of which was in force on some day between July 1 and September 30, 2021, and most of which were in force on every day.
Section 3134(c)(2)(A)(ii)(I) asks whether "the operation of the trade or business ... is fully or partially suspended during the calendar quarter due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes) due to the coronavirus disease 2019 (COVID-19)."119 Congress enacted that clause for this quarter on March 11, 2021, five weeks after the federal conveyance order took effect and one day before OSHA named restaurants in its emphasis program, and on November 15, 2021 it terminated the following quarter and left this one in place.120 The Notice's rules carry into the quarter by Notice 2021-49: a modification required by order that "has more than a nominal effect on the business operations under the facts and circumstances" is a partial suspension, "requiring employees and customers to wear face coverings" is such a modification, an employer that "reduces its operating hours due to a governmental order is considered to have partially suspended its operations," and an employer suspended "during a portion of a calendar quarter is an eligible employer for the entire calendar quarter."121
B. The instruments in force from July 1 through September 30, 2021
B-1. The federal conveyance order and its directives (Ex. FED-020)
Issuer: the Centers for Disease Control and Prevention under 42 U.S.C. § 264; the Transportation Security Administration under 49 U.S.C. § 114(l)(2). Dates: order effective 11:59 p.m. February 1, 2021, "until further notice"; Security Directive 1582/84-21-01A (May 12 to September 13, 2021) and -01B (announced by the Administration August 20, 2021; effective September 14, 2021 to January 18, 2022); the airport directive SD 1542-21-01 (to May 11, 2021) and its successors -01A and -01B, recorded in the Library's record for Ex. FED-054. Operative clause: "Persons must wear masks over the mouth and nose when traveling on conveyances into and within the United States"; "Owner/Operators must require that individuals wear a mask"; airport operators "must ensure direct employees, authorized representatives, tenants, and vendors wear a mask at all times in or on the airport." Class: an occupational-health and airborne-transmission control on the conveyance and the transportation hub, imposed on the operator, its employees, its tenants and vendors and every passenger, and carried by the operator's duty to require compliance. Enforcement: federal law, with civil penalties. Status: in force July 1 and September 30, 2021. Functions: WF (every employee who commuted by bus, rail, ferry or rideshare), CB (every traveling customer), TO and BQ (every airport and transit-hub concessionaire).122
B-2. The OSHA National Emphasis Program (Ex. SEC-05-002)
Issuer: the Occupational Safety and Health Administration. Dates: DIR 2021-01 of March 12, 2021, superseded by DIR 2021-03 effective July 7, 2021, "effective for no more than 12 months." Operative text: the targeted-industry appendix lists "722511 Full-Service Restaurants" and "722513 Limited-Service Restaurants"; the program "targets establishments that have workers with increased potential exposure to this hazard." Enforcement: programmed inspections and citations under the general duty clause and the existing standards. Status: in force July 1 and September 30. Functions: HR, OP, KT, DR.123
Issuer: the President under 8 U.S.C. § 1182(f); the Secretary of Homeland Security under 19 U.S.C. § 1318(b); the CDC under 42 U.S.C. § 264. Proclamations 10143 and 10199 suspended the entry of non-citizens present in the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa and India until Proclamation 10294 revoked them effective November 8, 2021; the land-border notices of June 23 ("in effect at 12 a.m. Eastern Daylight Time (EDT) on June 22, 2021 and ... until 11:59 p.m. EDT on July 21, 2021") (Ex. FED-232; Ex. FED-255), July 22 (to August 21) (Ex. FED-233; Ex. FED-256), August 23 (to September 21) (Ex. FED-234; Ex. FED-257) and September 22, 2021 (to October 21) (Ex. FED-235) confined Canadian and Mexican crossings to essential travel; the pre-departure test order of January 25, 2021, effective January 26, governed every arriving air passenger. Status: in force July 1 and September 30. Functions: CB, KT, WF.124
Issuer: the CDC; the Governor of Washington; the California Legislature. Dates: the CDC order extended to July 31, 2021 and re-imposed for high-transmission counties from August 3 to August 26, 2021 ("shall not evict any covered person"); Washington's Proclamation 21-09 from July 1 to September 30, 2021 ("I hereby prohibit the following activities related to residential dwellings"); California's AB 832 covering rent accrued through September 30, 2021. Status: in force in the quarter. Functions: WF, CB.125
Issuer: the Governor under HRS ch. 127A; the county Mayors with the Governor's concurrence. Executive Order 21-05 of August 10, 2021 (Ex. HI-025; restated verbatim as Exhibit F to the October 1, 2021 proclamation, Ex. HI-029) provides: "Restaurants, bars, and social establishments will implement the following ... Patrons must remain seated with their party ... Six feet distancing must be maintained between groups ... No mingling ... Masks must be worn at all times except when actively eating or drinking," and "For all high-risk activities, indoor capacity is set at 50%. This includes bars, restaurants, gyms, and social establishments," with indoor gatherings capped at ten and outdoor at twenty-five; the statewide face-covering requirement (Twenty-First Proclamation, June 7, 2021, Ex. HI-023; Emergency Proclamation of August 5, 2021, Ex. HI-024), an airborne-transmission control on every indoor public setting, and the Safe Travels quarantine-or-test regime on every arrival ran throughout; Honolulu's Emergency Order 2021-09 (effective July 8) capped indoor social gatherings at twenty-five, and its Emergency Order 2021-11 (effective September 13) provided that "all covered entities shall not permit" a patron to enter without proof of full vaccination or a negative test, the covered entities including "b. Restaurants/Bars"; Maui's rules took effect September 15 and Hawaii County's Rule 26 in September. Enforcement: misdemeanor under HRS § 127A-29 and the county codes. Status: the statewide face-covering requirement (Ex. HI-023; Ex. HI-024) and the Safe Travels regime in force July 1 and September 30; Executive Order 21-05, with its 50 percent indoor capacity cap, in force from August 10 through September 30; Honolulu's Emergency Order 2021-09 from July 8 and Emergency Order 2021-11 from September 13. Functions: DR (capacity, seated service, spacing and face coverings, imposed together as the order's exposure-control conditions on every room), BA, BQ, CB, HR.126
Oregon's OAR 333-019-1025, effective August 13, 2021, provides that "Individuals, regardless of vaccination status, are required to wear a mask, face covering or face shield ... when in an indoor space," with the operator's duty to "ensure employees, contractors, and volunteers comply" and to post signs, enforced by civil penalties up to $500 a day; Oregon OSHA renewed the face-covering requirement of its workplace rule the same day, so that the control bound the restaurant as an employer as well as a public place. Washington's Secretary of Health Order 20-03.4, effective August 23, 2021, provides that "Every person in Washington State must wear a face covering ... when they are in a place where any person from outside their household is present," with Proclamation 20-25.15 and the Department of Labor and Industries' readoption of WAC 296-800-14035; the Liquor and Cannabis Board's allowances ran to July 31, and King County ordered face coverings at large outdoor events September 7. California's State Public Health Officer's order, which made the Department of Public Health's face-covering guidance of July 28, 2021 mandatory by incorporation (Ex. CA-029; Ex. CA-036), required face coverings of unvaccinated persons "in indoor public settings and businesses (examples: retail, restaurants, theaters ...)" and put every business to the choice of self-attestation, vaccine verification or universal masking, with Cal/OSHA's standard on every restaurant workplace; Los Angeles County reinstated universal indoor face coverings from 11:59 p.m. July 17 ("this Order reinstates masking by all, regardless of vaccination status"), Pasadena July 21, Sacramento July 29 and the Bay Area August 3, and San Francisco required proof of vaccination for indoor dining and bars from August 20. Nevada's Declaration of Emergency Directive 047 (July 27, 2021; effective 12:01 a.m. July 30) (Ex. NV-041) required face coverings indoors in substantial- and high-transmission counties and was applied to every gaming licensee's bars and restaurants by Gaming Control Board Notice 2021-71 ("shall ensure that all employees, patrons, and guests properly utilize face coverings"); Directive 048 of August 4 defined "indoor public setting" to include "breakrooms, hallways, cafeterias, meeting rooms"; Clark County required employee face coverings from July 22 (adopted July 20). Each of these instruments is an occupational-health and airborne-transmission control on staff and patrons alike, carried by the operator's duty to ensure compliance and to post the rule where the instrument so provides (Oregon), by the workplace-safety agencies' rules (Oregon OSHA; Washington's Department of Labor and Industries; Cal/OSHA), by the gaming regulator's duty on every licensee (Nevada) and, in California, by the operator's choice among verification, attestation and universal face coverings. Status: in force September 30 in each State; Los Angeles County's order from July 17. Functions: DR, BA, HR, OP.127
Louisiana's Proclamation 137 JBE 2021, effective August 4, 2021 and renewed to October 27, required indoor face coverings of every patron and staff member except while eating or drinking, an airborne-transmission control on the dining room and the bar alike; New Orleans imposed an indoor face-covering mandate July 31, a vaccination-or-test condition on indoor dining, bars, gyms and event venues from August 16 (enforced from August 23) and an employee vaccination-or-testing order August 19; Jefferson Parish followed August 3. New Mexico's Public Health Order of June 30, effective July 1, made the COVID-Safe Practices mandatory and required face coverings of the unvaccinated, and its order of August 17 reinstated universal indoor face coverings from August 20, exposure-control requirements imposed on every indoor public setting beside the Practices. Colorado's D 2020 011 authorized sealed takeout alcohol to July 8; Boulder County required indoor face coverings from September 3; Denver ordered personnel vaccination August 2. Arizona's EO 2020-60 outdoor-premises regime ran "until further notice" and EO 2021-05 to September 29; Tucson enacted Ordinance 11869 August 13. The Navajo Nation held its businesses at Yellow Status ("50% of maximum occupancy") and under its face-covering mandate on July 1 (Ex. AGY-TRIBAL-020) and at Orange Status from August 12, at which restaurants "including indoor dining" remained at "50% of maximum occupancy" (Ex. AZ-082); the Mescalero Apache Tribe re-imposed face coverings "regardless of vaccination status" August 20; the Yakama Nation's PSO No. 3 continued. Each face-covering instrument named in this subpart (Louisiana's, New Orleans's, Jefferson Parish's, New Mexico's, Boulder County's, the Navajo Nation's and the Mescalero Apache Tribe's) is an occupational-health and airborne-transmission control imposed on staff and patrons alike, carried, where the instrument so provides, by the operator's duty to enforce it and, in New Orleans, by the vaccination-or-test condition imposed beside it. Status: New Mexico's June 30 order, Arizona's EO 2020-60, Colorado's D 2020 011 (to July 8) and the Navajo and Yakama orders in force July 1; Louisiana's 137 JBE 2021 (from August 4, renewed), New Mexico's August 20 face-covering order, New Orleans's July 31 and August 16 orders, Boulder County's, Denver's, Tucson's and the Mescalero order in force September 30; Arizona's EO 2021-05 expired September 29. Functions: DR, BA, TO, HR.128
Illinois' Executive Order 2021-20 of August 26, 2021 provides that "Beginning on Monday, August 30, 2021, all individuals in Illinois who are age two or over ... shall be required to cover their nose and mouth with a face covering when in an indoor public place," and EO 2021-22 of September 3 added the employer's duty to enforce face coverings on its staff, making the requirement an occupational-health control on every workplace as well as an airborne-transmission control on every indoor public place; the disaster proclamations were renewed monthly, the Liquor Control Commission's guidance on to-go sales and its extension of license-renewal dates ran to December 31, 2021 (the Commission's guidance implementing the Governor's proclamations and the licensing statute, cited as context and not as an order), and Chicago (August 20), Cook County (August 23) and Oak Park (August 6) issued their own face-covering orders. Missouri's EO 20-05 ran to August 27, and the St. Louis City and County orders of July 26 and August 30 and the Kansas City, Jackson County, Johnson County, Wyandotte County and Douglas County orders of August 2 through September 23 placed indoor face-covering requirements on both sides of each metropolitan area across the State line. Cuyahoga County (August 3), Columbus (September 10-14) and Dayton (effective September 17) ordered indoor face coverings in Ohio, and Monroe County in Indiana, Madison and Dane County in Wisconsin, Iowa City, Minneapolis and Oakland County in Michigan issued the orders named in the note. Each of the face-covering orders named in this subpart is an airborne-transmission control imposed on every indoor public place and on the staff and patrons within it, carried in Illinois by the employer's duty to enforce it (EO 2021-22) and in Chicago by the signage duty on every business. Status: the Illinois disaster proclamations (with the Liquor Control Commission's implementing guidance as context), Missouri's EO 20-05 (to August 27) and Minneapolis's Regulation 2020-13 in force July 1; Illinois' EO 2021-20 and 2021-22, Chicago's, Cook County's, Oak Park's, St. Louis City's, Kansas City's, Jackson, Johnson, Wyandotte and Douglas Counties', Cuyahoga County's, Columbus's, Dayton's, Monroe County's, Madison and Dane County's and Iowa City's orders in force September 30. Functions: DR, BA, HR, WF.129
New York's 10 NYCRR Subpart 66-3, in force to August 27, required that "[e]mployees of food service establishments who are not fully vaccinated must wear a mask or face-covering at all times while at their place of work" and that "[b]usinesses must provide, at their expense, such face coverings"; the HERO Act standard of July 6 required every private employer's plan by August 5 and activated it September 6; and New York City's EEO 225 (effective August 17; penalties from September 13), restated by EEOs 228, 239 and 250, barred every covered entity from admitting a patron, employee or contractor without proof of vaccination, while the Open Restaurants Program continued. New Jersey's EO 242 ¶¶ 2-3 and EO 243 carried EO 192's worksite face-covering, distancing and screening requirements for unvaccinated employees, a workplace infection-prevention and exposure-control regime enforced by the Department of Labor and Workforce Development; P.L. 2021, c. 103 continued EO 150's outdoor-premises expansions to January 1, 2022; the Division's expansion permits ran to November 30, 2022; EO 251 required face coverings in the schools from August 9 (Ex. NJ-055) and EO 252 required vaccination or weekly testing of health-care and congregate-setting workers from September 7 (Ex. ECO-B-030). Pennsylvania's Act 21 of 2021 continued the Commonwealth's regulatory suspensions to September 30 and Act 73 to March 31, 2022; Philadelphia's Full Reopening Order ran all quarter and its August 12 amendment required face coverings in "[a]ny indoor setting, unless a business operating at the setting requires everyone on site to be vaccinated," an exposure-control requirement that put every operator to a choice between universal face coverings and vaccination verification, with the health-care-worker regulation and contractor policy named in the note. Massachusetts' Chapter 20 continued takeout alcohol and outdoor table service, the Commission's outdoor allowances ran to August 15, and Boston's face-covering order of August 27 ("Patrons standing or ordering at the bar must be masked"), an airborne-transmission control on the room and on the bar as a bar, was followed by Brookline and Cambridge. Connecticut's EO 13 of July 19 (Ex. CT-049) carried the State's orders to September 30, and its EO 13A of August 5 required face coverings of unvaccinated persons indoors and authorized municipal universal mandates. Rhode Island's dining rules ran to August 31; Delaware's business duties to 12:01 a.m. July 13; Maryland's alcohol authorizations ended July 1 and its remaining orders August 15, with Montgomery and Prince George's Counties ordering indoor face coverings August 7-8; Vermont's Act 70 governed alcohol to-go. The District's Mayor's Order 2021-097, effective 5:00 a.m. July 31, provides that "All persons must wear masks indoors as prescribed by DC Health guidance and regulations." Connecticut's EO 13A, the Montgomery and Prince George's County orders and the District's Mayor's Order 2021-097 are, with New York's Subpart 66-3, New Jersey's worksite rules, Philadelphia's amendment and Boston's order, workplace infection-prevention and exposure-control requirements imposed on staff and patrons alike, carried by the operator's duty to enforce them where the instrument so provides and, in New York City, by the verification duty at the door. Status: 10 NYCRR Subpart 66-3 (to August 27), New Jersey's EO 242 and 243 and P.L. 2021, c. 103, Pennsylvania's Acts 21 and 73, Philadelphia's Full Reopening Order, Massachusetts' Chapter 20 and outdoor allowances (to August 15), Rhode Island's dining rules (to August 31), Delaware's duties (to 12:01 a.m. July 13) and Vermont's Act 70 in force July 1; the HERO Act standard (from July 6), EEO 225 (from August 17), EO 251 and 252, Philadelphia's August 12 amendment, Boston's August 27 order, Connecticut's EO 13A, the Montgomery and Prince George's orders and the District's Mayor's Order 2021-097 in force September 30. Functions: DR, BA, TO, BQ, HR, OP, WF.130
Texas's GA-38 of July 29 preempted local mandates while Senate Bill 968 (Tex. Health & Safety Code § 161.0085), effective June 16, 2021, prohibited every Texas business from requiring a customer's proof of vaccination on entry or as a condition of service and directed each state agency to ensure compliance, authorizing it to require compliance "as a condition for a license, permit, or other state authorization" (Ex. TX-032, § 161.0085(c)-(d)); the Commission's announcement of August 11, 2021 told its permittees that it would enforce the prohibition as a condition of every Commission permit (Ex. AGY-ST-ALCOHOL-016, the regulator's announcement, cited as context and not as an order); Dallas County (August 11-16), Bexar County and San Antonio (August 11) and Harris County (schools) ordered notwithstanding. Florida's s. 381.00316 provided from July 1 that "A business entity ... may not require patrons or customers to provide any documentation certifying COVID-19 vaccination." Atlanta (July 28) and Savannah (July 26) ordered indoor face coverings, airborne-transmission controls on every indoor public place, until the Governor's EO 08.19.21.03 suspended their application to businesses. Mecklenburg County's Board of Health rule (effective August 31) and its revised rule of September 8, with the Durham, Orange County and City of Raleigh orders of August 9-13, placed indoor face-covering requirements, airborne-transmission controls on staff and patrons alike, on North Carolina's largest markets. Kentucky's emergency (Ex. KY-001) ran to HJR 1 of September 7 (Ex. KY-056) with Louisville's and Lexington's instruments; Virginia's workplace standard was amended September 8; Alabama declared a new emergency August 13 (Ex. AL-052) and Arkansas one from July 29 to September 27 (Ex. AR-017) beside its standing fourteen-day quarantine directive (Ex. AR-073); Richland County (September 14) and Tennessee's EO 82 (July 30) and EO 83 (August 6) (Ex. TN-034; Ex. TN-035) complete the region. Status: Senate Bill 968 (Ex. TX-032; from June 16, enforced by the Commission as a permit condition), Florida's s. 381.00316 and Virginia's workplace standard in force July 1 and September 30; GA-38 (from July 29), the Dallas, Bexar and Harris County orders, Mecklenburg's rule (from August 31), the Durham, Orange and Raleigh orders, Alabama's August 13 emergency and Richland County's order in force September 30; Atlanta's and Savannah's orders in force July 26-28 to August 19. Functions: BA (the vaccination-proof prohibitions as license conditions), CB, DR, HR, WF.131
Puerto Rico's OE-2021-063 (effective August 23, 2021) required the employees of restaurants, bars, theaters and stadiums to be vaccinated or tested weekly and barred unvaccinated or untested patrons, and OE-2021-065 (effective September 2) ordered indoor face coverings and a midnight-to-5:00 a.m. closing, exposure-control conditions imposed together on every restaurant and bar beside OE-2021-063's vaccination-or-test requirement; the Virgin Islands kept a midnight closure and alcohol limits on restaurants and bars until October 29, 2021; Guam's EO 2021-19 of August 20 required proof of vaccination for entry to restaurants and bars. Status: the Virgin Islands' closure and alcohol limits in force July 1 and September 30; OE-2021-063 (from August 23), OE-2021-065 (from September 2) and Guam's EO 2021-19 (from August 20) in force September 30. Functions: DR, BA, HR, CB.132
The health-care-worker vaccination orders of August and September 2021 in California, New Jersey, Illinois, Connecticut, New York, Maryland, Los Angeles County and Philadelphia governed the hospitals, nursing homes and campuses that are the industry's institutional food-service customers and banquet venues, and the OSHA Healthcare Emergency Temporary Standard governed the same institutions on every day of the quarter. The school face-covering orders of New Jersey, Illinois, Louisiana, Nevada, Kentucky, Oakland County and Harris County and the quarantine standing orders governed the workforce's children. The Supreme Court of Texas's Fortieth Emergency Order (August 1 to October 1) and the judicial emergency orders of Virginia and other States governed the industry's landlord-tenant, collection and licensing disputes. The public health emergency renewed effective July 20 and the national emergency continued from March 1 stood as predicates. Status: the Healthcare Emergency Temporary Standard, the public health emergency and the national emergency in force July 1 and September 30; the health-care-worker and school orders of August and September and the Fortieth Emergency Order (August 1 to October 1) in force September 30.133
C. How the instruments reached the functions
DR
In Hawaii every table in the State was governed from August 10 by a 50 percent indoor capacity cap and by seated-only, six-foot, no-mingling and face-covering conditions, the order's exposure-control regime for every room, and in Honolulu from September 13 by proof of vaccination at the door. In seven States (Hawaii, Louisiana, Nevada, Oregon, Washington, Illinois and New Mexico), the District of Columbia and the thirty-odd cities and counties named in subpart B, every server and every guest not actively eating or drinking was required by order to wear a face covering from dates between July 17 and September 17, and in California and Connecticut every unvaccinated one, an airborne-transmission control imposed on the room with the operator under a duty to enforce and to post. In New York City, San Francisco and New Orleans the operator was required to check the vaccination status of every patron and, in New York City and New Orleans, of every employee and contractor before admitting them; in California the operator was put to a choice of verification, attestation or universal masking; in New York, until August 27, every unvaccinated food-service employee wore a face covering at all times at the employer's expense, an occupational-health control the regulation placed on the employer. The Notice's own words describe the result: "requiring employees and customers to wear face coverings" is a modification "required by a governmental order as a condition of reopening a physical space for business or service to the public."134
BA
The bar function was conditioned in the same jurisdictions and additionally by the alcohol regulators: Senate Bill 968's prohibition in Texas, enforced by the Commission as a permit condition (Ex. TX-032; Ex. AGY-ST-ALCOHOL-016, context), New Jersey's expansion permits and back-order regime, Massachusetts' outdoor allowances to August 15 (COVID-19 Order No. 50, Ex. MA-030, as carried by Ex. AGY-ST-ALCOHOL-091) and Chapter 20 of the Acts of 2021 § 19 (Ex. MA-053), Illinois' to-go guidance, California's relief "during the current state of emergency," the to-go allowances that lapsed in the quarter in Washington, Colorado and Missouri and the New York lapse of June 25, which removed by order a revenue line the orders had created. Boston's rule that "[p]atrons standing or ordering at the bar must be masked" and Hawaii's "No mingling" are conditions on the bar as a bar.
TO, BQ and KT
The Open Restaurants and outdoor-premises regimes of New York City, New Jersey, Massachusetts, Arizona and Lexington governed the outdoor line; the gathering caps of Hawaii (ten indoors), Honolulu (twenty-five), the Virgin Islands (fifty) and Guam governed the banquet; the entry, border and pre-departure orders, the Healthcare Emergency Temporary Standard on institutional customers and the National Emphasis Program's inspections governed the kitchen and its supply.
HR, OP and WF
The National Emphasis Program, the HERO Act plans, Cal/OSHA, Oregon OSHA, Washington L&I, Virginia's standard and New Jersey's EO 192 governed screening, training, exclusion and record-keeping in every restaurant workplace in those States; the conveyance order governed every commute; the school face-covering orders and quarantine rules, airborne-transmission and exclusion controls on the workforce's children, governed the workforce's availability; Puerto Rico's and New Orleans's employee vaccination-or-test orders governed who could work.
CB
The entry proclamations, the land-border notices, the pre-departure test order, Hawaii's Safe Travels regime and the vaccination-proof conditions of entry fixed who could sit in the dining room; Florida's and Texas's prohibitions on requiring proof fixed, from the other direction, how a business could condition service.
D. Continuing suspension
The clause asks whether the operation "is fully or partially suspended during the calendar quarter due to orders." The adverbial phrase "during the calendar quarter" modifies "suspended"; Congress did not write "due to orders in effect during the calendar quarter." An operation that an order terminated in one quarter and that had not been restored to its ordinary course in the next is "partially suspended during" the next quarter "due to" the order, because a suspension is, on the United States' own agreed definition, "[t]he act of temporarily delaying, interrupting, or terminating something," and a delay does not end on the day the order that caused it expires.135
The arithmetic
The orders' own phase steps fix how long the restoration took. A Pennsylvania dining room ordered closed March 16-19, 2020 reopened at 50 percent May 29, was cut to 25 percent July 16, closed again December 12 to January 4, 2021, and was released from caps only May 31, 2021.136 A New York City dining room closed March 16, 2020 reopened indoors September 30 at 25 percent, closed again December 14 to February 12, 2021, was released from caps May 19 and from curfew May 31, lost its to-go alcohol line June 25 and was placed under a vaccination check at the door August 17.137 A Washington dining room closed March 16, 2020 was closed again November 18, 2020 to January 11, 2021, ran at 25 and 50 percent with bar seating closed to June 30, 2021, and was placed under the universal indoor face-covering requirement, an airborne-transmission control on staff and patrons alike, August 23.138 A California bar closed March 19, 2020 was closed statewide July 13 and in every Purple and Red county from August 31, 2020 to June 15, 2021, and from July 17 (Los Angeles County) and August 3 (the Bay Area) served its patrons under the reinstated face-covering requirement, from August 20 (San Francisco) vaccinated patrons only.139 In each case the last capacity step took effect between May 19 and June 30, 2021, and the third quarter began within one to six weeks. The interconnected-economy section states the point in full; the Notice itself recognizes that an employer suspended for part of a quarter is eligible for the whole quarter and that a transition period follows a change compelled by order.140
The four pathways
Continuing suspension reaches the third quarter of 2021 by four independent routes: (1) the orders in force on every day of the quarter; (2) the orders issued inside it; (3) the license and permit conditions the alcohol regulators kept in force after the general restrictions ended; and (4) the restoration period the orders' own phase steps compelled. Each is independently sufficient; the finding in subpart F rests on all four, and the closing paragraph of this section names the expired instruments on which it does not rest.
E. The Service's grounds for the quarter, answered
"No orders in effect."
There were no government orders related to COVID-19 in effect during the quarter which could have fully or partially suspended your trade or business.
Subpart B lists them. The conveyance order, the National Emphasis Program, the entry and border orders, Hawaii's restaurant order, the alcohol regulators' license and permit conditions and the workplace standards were in force July 1; the reinstated indoor face-covering requirements of seven States (Hawaii, Louisiana, Nevada, Oregon, Washington, Illinois and New Mexico) and the District of Columbia for every person, of California and Connecticut for the unvaccinated, each a workplace infection-prevention and exposure-control requirement on staff and patrons alike, and the vaccination-proof orders of four cities were in force September 30. It is factually incorrect.
"The orders had lifted; any effect was a lingering effect."
The orders had lifted before the quarter began; any effect was a lingering effect.
The general capacity orders lifted between March and June 2021 and are not relied on for this quarter; the orders relied on were in force in this quarter, and the restoration compelled by the lifted orders' own steps is a continuing suspension, not an effect of an order that no longer exists. The position confuses the expiry of an order with the end of the suspension it caused; Congress wrote "suspended during the calendar quarter," not "orders in effect during the calendar quarter."
"Masks are a modification of nominal effect."
Masks are a modification of nominal effect.
The Notice names "requiring employees and customers to wear face coverings" among the modifications contemplated by Q&A-17, and states that "occupancy restrictions at a restaurant with indoor dining service may result in an actual, and more than nominal, reduction of the restaurant's ability to service customers"; Q&A-18's final sentence speaks of "mask requirements" as "modifications altering customer behavior" and of rules "that require employees to wear masks and gloves while performing their duties," and of nothing else: a bare mask rule standing alone. It does not speak of an order that fixes who may sit in the room ("Patrons must remain seated with their party"; "Six feet distancing must be maintained between groups"; "No mingling"), who may enter it (proof of vaccination), or what the operator must verify and post; and the same Q&A lists "requiring employees and customers to wear face coverings" among the modifications "required by a governmental order as a condition of reopening a physical space for business or service to the public," and the Notice's own restaurant example holds that a spacing constraint "has more than a nominal effect." The Service's reading sets Q&A-18's last sentence against its first paragraph and against Example 2 to Q&A-17. No instrument in subpart B is a bare mask rule standing alone; each arrived as one condition among several on the same dining room and the same bar, and each is a workplace infection-prevention and exposure-control requirement, or an occupational-health and airborne-transmission control, of which the face covering was one element.141
"The employer was not the addressee."
The employer was not the addressee of the order.
The conveyance order addressed the operator of the bus; the border notice addressed the traveler; the school face-covering order addressed the school. The United States has represented that "a business may be suspended 'due to' a government order addressing a third party," and the statute says nothing of the addressee.142
"Guidance, not orders."
The instruments relied on are guidance, not orders.
Every instrument in subpart B is an order, proclamation, rule or statute with a sanction; the guidance documents of the period (the CDC's restaurant considerations, the FDA's best practices, OSHA's takeout alerts) are described in this analysis as guidance and ground no finding, and the alcohol regulators' announcements and advisories cited beside the orders and statutes they implemented are cited as context and described as such.143 A rule filed in the Oregon Administrative Rules with a civil penalty of $500 a day (Ex. OR-048), a Governor's proclamation enforceable as a misdemeanor and a federal order whose violation "constitutes a violation of Federal law" (Ex. FED-020) are not recommendations.
F. The finding
During the calendar quarter beginning July 1, 2021 and ending September 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the federal conveyance order (the CDC's airborne-transmission control on every conveyance and transportation hub) and its security directives, the OSHA National Emphasis Program targeting full-service and limited-service restaurants, the entry proclamations and land-border notices, Hawaii's Executive Order 21-05 with its 50 percent indoor capacity cap and Honolulu's Safe Access Oahu, the indoor face-covering orders of Hawaii, Louisiana, Nevada, Oregon, Washington, Illinois, New Mexico and the District of Columbia, of California and Connecticut as to the unvaccinated, and of Los Angeles County, the Bay Area, New Orleans, Chicago and Cook County, Philadelphia, Boston, St. Louis, Kansas City, Atlanta, Charlotte, Cleveland, Columbus, Dallas County and their counterparts (each a workplace infection-prevention and exposure-control requirement imposed on staff and patrons alike), the vaccination-proof conditions of entry in New York City, San Francisco, New Orleans and Honolulu, New York's food-service employee face-covering rule and HERO Act standard, the alcohol regulators' license and permit conditions, the State workplace standards and the school, health-care and court orders on the industry's counterparties (Ex. FED-020; Ex. SEC-05-002; Ex. FED-207; Ex. FED-235; Ex. HI-025; Ex. HI-024; Ex. MET-HNL-035; Ex. LA-036; Ex. NV-041; Ex. NV-051; Ex. OR-048; Ex. WA-078; Ex. IL-042; Ex. NM-067; Ex. CA-035; Ex. CT-050; Ex. DC-057; Ex. MET-LA-018; Ex. MET-SFO-011; Ex. MET-MSY-029; Ex. MET-CHI-026; Ex. MET-PHL-019; Ex. MET-BOS-013; Ex. MET-NYC-017; Ex. NY-133; Ex. TX-032; Ex. AGY-ST-ALCOHOL-041; Ex. ECO-B-083; Ex. ECO-C-070 and the exhibits collected in subpart B), caused a temporary delay, interruption and, in the vaccination-proof jurisdictions, termination as to the unvaccinated patron of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by fixing, in the third quarter of 2021 as in the six before it, who could sit in the dining room, what each person wore, who could work, who could enter and on what proof, and by which hour the bar closed.
What this analysis does not claim was in force
Of the statewide dining-room orders, the proof for this quarter rests on Hawaii's Executive Order 21-05 of August 10, 2021, with its statewide 50 percent indoor capacity cap (Ex. HI-025; restated as Exhibit F to the Oct. 1, 2021 proclamation, Ex. HI-029, cited for the restatement only), the one statewide capacity order in force in the quarter, and on Delaware's business duties (to 12:01 a.m. July 13) (Ex. DE-038) and Rhode Island's dining rules (to August 31) (Ex. RI-071) for the days they ran; the federal, metropolitan, sector and counterparty instruments on which it also rests are listed in subpart B. It rests on none of the following, each of which had expired before July 1, 2021 or took effect after September 30, 2021: the March and April 2020 closure orders of every State (Ex. NY-010; Ex. IL-004; Ex. TX-003; Ex. CA-002 and their counterparts); the winter 2020-21 closure and curfew orders (Ex. CA-020; Ex. WA-047; Ex. MN-032; Ex. IL-031; Ex. MI-061; Ex. PA-028; Ex. NY-039; Ex. MA-033 and their counterparts); every other statewide capacity, hours and bar-closure order, the last of which ended June 30, 2021 in Oregon and Washington (Ex. OR-043; Ex. WA-064); the federal leave mandate (December 31, 2020) (Ex. FED-170); the statewide face-covering orders that ended before July 1, 2021, other than Hawaii's and those reinstated in the quarter; the alcohol-to-go authorizations beyond their end dates (New York June 25, Indiana June 30, Pennsylvania June 2021, Maryland July 1, Colorado July 8, Washington July 31, Missouri August 27); the vaccination-proof compliance dates that fell after the quarter (Los Angeles County's bars, October 7, Ex. MET-LA-020; King County, October 25, Ex. MET-SEA-001, with the County's release announcing it, Ex. MET-SEA-037; the City of Los Angeles, Cook County and Chicago, Boston and Philadelphia in November 2021 and January 2022), each relied on only as an order issued in the quarter; the OSHA vaccination-or-testing standard and the CMS staff-vaccination rule of November 5, 2021; Proclamation 10294 (November 8, 2021); Hawaii's EO 21-08 (November 12, 2021) (Ex. HI-030); St. Louis City Health Commissioner's Order No. 3 (October 1, 2021) (Ex. MET-STL-023); the Supreme Court of Texas's Forty-Third Emergency Order, Ohio's HB 244, Indiana's EO 21-26 and 21-27, Rhode Island's EO 21-99 and the District's Mayor's Order 2021-119, each effective in October 2021. The Healthcare Emergency Temporary Standard is relied on as an order on the industry's institutional counterparties and not as an order on a restaurant.
The quarter the Service's letters most often dispute. The record shows these instruments in force on this industry's functions between July 1 and September 30, 2021; an order in force on any day of the quarter is an order in force during it, and the State, metropolitan and federal layers on the quarter page add to the list.