The six quarters
In each of the six 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 quarter's first and last day, reached this industry's functions at the customer sites where they are performed and at the offices, call floors, fingerprint sites, consular posts and commutes on which they depend, and caused a temporary delay, interruption or termination of a more than nominal portion of its operations. The third quarter of 2021 is treated at length.
The second quarter of 2020
On April 1, 2020 stay-at-home or closure orders were in force in forty-two States and the District of Columbia, and every State without a stay-at-home order had closed dining rooms, bars, gyms, theaters and schools and capped gatherings by statewide order.98 The customer sites of this industry were closed or emptied by those orders: non-essential manufacturing in Michigan (March 24 to May 11), Pennsylvania (March 19 to May 8), New York (March 22 to May 15 upstate and June 8 in the City), New Jersey and Washington; non-essential offices in every closure State; retail, hospitality, schools, arenas, stadiums, casinos and malls everywhere.99 The lists classified the industry's own functions: "Employment Services No," "Business Support Services No" and "Office Administrative Services No" in Pennsylvania; "Staffing and/or payroll services" admitted in Maryland only as "Supporting Firms" to critical-infrastructure businesses; "customer service call centers and telemarketing operations" closed by name in Delaware; "All call centers situated in New Mexico ... directed to reduce their in-person workforce by 100%"; "cleaning and janitorial staff for commercial and governmental properties, security staff" named as permitted trades in Illinois and Ohio; "janitorial and custodial staff" named in New Jersey as those who could stay when every other worker was sent home.100 Landscaping was barred in Michigan from March 24 to April 24, 2020 and conditional after; barred in Washington to May 4; confined to crews of two in Vermont from April 20; limited on Nantucket by the stay-at-home order of March 22 and prohibited in terms by the Supplemental Emergency Order of March 30; omitted from New York's list of March 27; and permitted by name, as a condition, in Connecticut, Idaho, Indiana (from April 20), Georgia, Massachusetts, Maryland and St. Louis.101 Hiring stopped at the credential: North Dakota suspended criminal-history checks "until such time as law enforcement agencies in North Dakota have the ability to safely conduct fingerprinting"; Minnesota authorized licensure "without submission by the applicant of a full set of fingerprints"; Montana authorized name-based checks "where fingerprinting services are unavailable"; Pennsylvania recorded that "more than half" of its fingerprint sites were closed on April 29, 2020 and extended its FBI-check deadline by statute; Mississippi and New York extended security-guard permits and licenses because the issuing offices were closed.102 The federal labor pathway closed: the Department of State suspended routine visa services March 20; USCIS closed its offices and Application Support Centers from March 18; DHS confined every 2020 H-2B flexibility to the food supply chain on May 14; and Proclamation 10052 suspended H-2B entry from June 24, 2020.103 The FFCRA leave mandate took effect April 1, 2020 for every employer under 500 employees; the Bureau of Labor Statistics recorded the loss of 937,700 temporary-help jobs between February and April 2020.104 On June 30, 2020 the stay-at-home orders had lifted in most States, but every customer site operated under capacity, distancing, screening and telework rules (New Jersey's Executive Order 107; Michigan's Executive Order 2020-110, "must be performed remotely"; New York's fifty-percent office ceiling; Pennsylvania's Worker Safety Order; Ohio's Stay Safe Ohio orders), venues, stadiums and schools remained closed, and Proclamation 10052 had been in force for six days.105
PL ended with the customer's closure or ran under the customer's conditions; RC stopped at the closed fingerprint site, the closed clinic and the closed licensing office; JS emptied with the buildings and was commanded as a condition of the buildings that stayed open; SG idled with every venue, mall and office and shrank to access control at the sites the lists kept open; LS was barred or confined by name at the season's opening and lost its foreign labor pathway; CC was ordered to zero in-person staff in New Mexico, closed in Delaware, marked "No" in Pennsylvania and sent home by every telework command; HR and OP ran under the same telework and capacity orders and the federal leave mandate; WF was confined at home, its children's schools closed, its second jobs in the closed sectors gone; CB was closed or capped in every industry this site's other industry pages describe.
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 stay-at-home, closure and telework orders of every State and the District (Ex. NY-002; Ex. PA-002; Ex. NJ-004; Ex. CT-007; Ex. CA-002; Ex. SEC-09-031; Ex. WA-016; Ex. IL-005; Ex. OH-011), the classifications that fixed the industry's own permission to work (Ex. PA-004; Ex. SEC-19-035; Ex. DE-005; Ex. NM-006; Ex. SEC-19-001; Ex. SEC-19-003), the landscaping bars and conditions (Ex. SEC-19-012; Ex. SEC-19-011; Ex. SEC-19-043; Ex. WA-031; Ex. SEC-09-027; Ex. MET-BOS-122), the fingerprint, licensing and permit instruments (Ex. ND-018; Ex. MN-011; Ex. MT-032; Ex. SEC-19-015; Ex. MS-012; Ex. NY-014), the consular suspension and the entry instruments (Ex. FED-327; Ex. SEC-19-018; Ex. SEC-19-005), with the closure of the immigration offices at which work-authorization biometrics are taken recorded in the agency's alert (Ex. FED-324), and the federal leave mandate (Ex. FED-170), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by closing or emptying the customer sites at which the industry's placements, cleaning contracts and guard posts are performed, by sending its call floors home, by barring and confining its landscaping crews, by closing the credential and visa channels through which it hires, and by classifying its own functions as permitted only where the customer was.
The third quarter of 2020
On July 1, 2020 reopening had returned customer sites under orders that changed how every placement, cleaning contract and guard post operated: Pennsylvania's Worker Safety Order and its Targeted Mitigation order of July 15 (telework "[u]nless not possible"; gatherings 25 indoors and 250 outdoors); New Jersey's Executive Order 122's workplace rules and Executive Order 107's continuing telework command; Ohio's Stay Safe Ohio business orders; Michigan's Executive Order 2020-110 ("Any work that is capable of being performed remotely ... must be performed remotely") and its Executive Order 2020-97 workplace safeguards; New York's mandatory office guidance at fifty percent; California's July 13 rollback that closed non-critical offices in the monitoring-list counties and made the closures County law in San Diego and Sacramento; Minnesota's COVID-19 Preparedness Plan requirement; Connecticut's Sector Rules at fifty percent; Massachusetts's Office Spaces rules; Colorado's Safer at Home telework rule; Oregon's office prohibition where telework was available; the District's Phase Two telework clause.106 Virginia's Emergency Temporary Standard took effect July 27, 2020, the first general workplace COVID-19 standard with force of law, binding "every employer, employee, and place of employment" in the Commonwealth.107 Face-covering mandates, workplace infection-prevention and exposure-control requirements imposed on every indoor business premises, issued in the metros before the States: Cincinnati (July 9), Columbus (July 7), Cleveland (July 15), Jefferson Parish (July 1), East Baton Rouge (July 3), St. Louis City and County (July 3), Kansas City and Jackson County (June 29 and July 1), Marion County (July 9), Orange and Seminole Counties (June 20 and 29), Hillsborough, Pinellas and Pasco (June 22-25), Milwaukee (July 16), Dane County (July 13), Tri-County and Jefferson County, Colorado (July 10 and 25), and each bound the business to enforce it on its employees and customers.108 Allegheny County closed every bar, restaurant, nightclub and casino to in-person operation from July 3 and prohibited indoor dining countywide from July 10; Marion County closed every bar and nightclub from July 24; New Orleans closed bars to on-premises consumption from July 25; Honolulu re-imposed a full Stay at Home / Work from Home order from August 27 to September 23, 2020 under which "[a]ll businesses with a facility in the City, except Essential Businesses ..., are required to cease all activities within such facilities, except Minimum Basic Operations."109 Venues, stadiums and most schools stayed closed to the public; the Clark County School District opened in full distance education from August 24, Marion County put every large middle and high school online or hybrid, and Sacramento County ordered every TK-12 school closed for in-person instruction; Proclamation 10052 barred the H-2B season's second half; CMS's nursing-home testing rule reached staff "under arrangement" from September 2.110 On September 30, 2020 customer sites operated under caps and written-plan rules, Michigan's orders ran to October 2 and then into the Michigan Department of Health and Human Services ("MDHHS") and MIOSHA instruments, most large school districts were remote or hybrid, and Proclamation 10052 was in force.111
PL ran at the customer's reopened headcount under the screening, distancing and face-covering requirements of the reopening orders, the workplace infection-prevention and exposure-control regime of every reopened customer site; RC resumed at fingerprint sites that were appointment-only and at clinics under elective-service rules; JS shifted to the cleaning and disinfection protocols the reopening orders commanded at half-occupied buildings; SG returned to venues that stayed closed and to buildings at fifty percent; LS worked the season without its H-2B labor and under the enhanced distancing rules; CC ran under telework commands in New Jersey, Michigan, Pennsylvania, California, New Mexico, Minnesota, Connecticut, Rhode Island, Oregon and the District; HR and OP under the same; WF under the transit agencies' face-covering rules and rider caps on every commute and the school closures of the fall; CB under caps in every sector.
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 reopening and telework orders of the States (Ex. PA-016; Ex. PA-008; Ex. NJ-011; Ex. NJ-004; Ex. SEC-19-014; Ex. NY-131; Ex. CA-017; Ex. SEC-10-045; Ex. CT-069; Ex. MA-017; Ex. OR-007), Virginia's workplace standard (Ex. VA-036), the metro face-covering and closure orders (Ex. MET-CIN-001; Ex. MET-CMH-018; Ex. MET-CLE-058; Ex. MET-MSY-054; Ex. MET-STL-058; Ex. MET-PIT-004; Ex. MET-IND-022; Ex. MET-HNL-019), the school and venue closures, the entry proclamation (Ex. SEC-19-005) and the nursing-home testing rule (Ex. FED-092), caused a temporary delay, interruption or 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 headcount, hours, spacing, screening and face-covering requirements of every customer site at which the industry's people worked, by keeping its call floors and offices remote, by keeping its venues and schools closed and by keeping its seasonal labor abroad.
The fourth quarter of 2020
On October 1, 2020 the third-quarter orders continued. MIOSHA's emergency rules of October 14, 2020 required every Michigan employer to create "a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely" and to screen "employees or contractors"; Wayne County made the rule a county health order on October 16 and Detroit's Emergency Order of October 9 imposed daily entry screening on "employees, contractors and suppliers" at every construction and manufacturing site.112 New Jersey's Executive Order 192 made a workplace infection-prevention and exposure-control regime (screening, face coverings, distancing and cleaning) mandatory in every workplace from November 5; Cal/OSHA's 8 CCR 3205 (November 30) and Oregon OSHA's rule (November 16) did the same in California and Oregon.113 The winter re-tightening re-closed offices and venues in seventeen jurisdictions: Pennsylvania required telework "[u]nless impossible" from November 27 and closed indoor dining, gyms and entertainment from December 12; California's Regional Stay at Home Order closed every non-critical sector from December 5 in the Southern California, San Joaquin Valley and Bay Area regions; New Mexico reset to its closure order from November 16; Minnesota's Executive Order 20-99 closed on-premises service from November 20; Michigan's MDHHS Pause began November 18; Illinois's Tier 3 held offices to fifty percent from November 20; Washington's Proclamation 20-25.8 held offices to twenty-five percent from November 17; Colorado's Level Red held offices to ten percent from November 20; Massachusetts cut offices to twenty-five percent from December 26; Rhode Island compelled telework again from November 30; Kentucky held offices to thirty-three percent from November 20; Vermont required telework "to the maximum extent possible" from November 14; Nevada's Statewide Pause cut every business to twenty-five percent from November 24; Iowa required remote work from November 11; Texas's GA-32 rolled back eighteen Trauma Service Areas to fifty percent; the District required telework from December 23.114 The metros went further: Denver's Home by 10 order confined residents nightly from November 8 and its Level Red order held offices to ten percent; St. Louis County's Safer At Home Order provided from November 17 that "You must not leave or be outside of your Residence except for specific purposes" and cut every business serving the public to twenty-five percent; Shelby County's Health Directive No. 16 ordered "[a]ll businesses except those listed below" to "close their physical locations to the public" from December 26; Jackson County and Johnson County held every business to fifty percent with ten o'clock and midnight closings; Dane County prohibited every indoor gathering from November 18 to December 15; Milwaukee's Order #4.2 held every restaurant, bar and venue to twenty-five percent from October 29; New Orleans returned to Modified Phase Two on November 25 and closed bars indoors on December 31; Honolulu ran Tier 2 with gatherings of five.115 Proclamation 10131 (December 31, 2020) carried the H-2B suspension to March 31, 2021; the federal buildings this industry serves stayed at maximum telework.116
PL contracted again with every re-closed and re-capped customer site and ran under MIOSHA, Executive Order 192, Cal/OSHA and Oregon OSHA at every open one; JS emptied again with the offices while the standards commanded its protocols; SG idled again with the venues and dining rooms; LS closed the season without a labor pathway for the next; CC was ordered remote in Michigan, Pennsylvania, Rhode Island, Vermont, Iowa and the District and capped in Illinois, Washington, Colorado, Kentucky, Massachusetts and Nevada; RC, HR and OP under the same; WF under the winter stay-home advisories and orders and the school closures; CB under the re-tightening in every sector.
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 State workplace standards (Ex. MI-054; Ex. NJ-036; Ex. CA-023; Ex. OR-032), the winter re-tightening orders (Ex. PA-022; Ex. CA-020; Ex. MN-032; Ex. IL-031; Ex. WA-047; Ex. CO-081; Ex. MA-040; Ex. RI-029; Ex. KY-033; Ex. VT-034; Ex. NV-030; Ex. IA-029; Ex. TX-025; Ex. DC-015), the metro orders (Ex. MET-DET-001; Ex. MET-DET-032; Ex. MET-DEN-028; Ex. MET-STL-074; Ex. MET-BNA-071; Ex. MET-KC-038; Ex. MET-KC-061; Ex. MET-MKE-034; Ex. MET-MSY-015), and the entry proclamation (Ex. SEC-19-006), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by re-closing and re-capping the customer sites, by ordering the offices and call floors remote a second time, by prescribing the protocols of every open workplace and by extending the closure of the seasonal labor pathway into the next season.
The first quarter of 2021
On January 1, 2021 the winter orders were in force: California's Regional Stay at Home Order to January 25; Pennsylvania's Limited-Time orders to January 4 and its mitigation order with mandatory telework to April 4; Michigan's MDHHS orders and MIOSHA rules; New Jersey's Executive Orders 107 and 192; Minnesota's, Illinois's, Washington's, Oregon's, New Mexico's, Colorado's, Massachusetts's, Rhode Island's, Kentucky's and Nevada's re-tightening orders through their stepped expiry.117 Executive Order 13991 (January 20, 2021) imposed face coverings and distancing, workplace infection-prevention requirements, on every "on-site Federal contractor" and every person in a federal building, and OMB's M-21-15 held every federal workplace to twenty-five percent occupancy from January 24, so that every janitorial, guard and staffing contract at a federal site ran at that occupancy; the CDC's conveyance order governed every transit commute from February 1; the Title 42 order, the entry proclamations and the land-border notices continued.118 Cal/OSHA, Oregon OSHA, MIOSHA and Virginia's permanent standard (January 27, 2021) governed every workplace in their States; Virginia's Executive Order 72 ran to May 28, 2021.119 The H-2B suspension expired on March 31, 2021 by its own terms after Proclamation 10149 revoked only the immigrant provisions on February 24, so that the landscaping season's hiring window closed with the pathway shut.120 Texas's GA-34 (March 10, 2021) ended Texas's business rules and began the preemption regime that shapes the Texas proof for the later quarters; the courts of every metro kept juries suspended into the spring.121 On March 31, 2021 telework commands were in force in New Jersey, Michigan (MIOSHA), California's Purple and Red counties and Pennsylvania (to April 4); the Blueprint kept offices "Remote" in most of California; the MIOSHA, Cal/OSHA, Virginia and Oregon standards were in force; and the H-2B suspension expired that day.122
PL and JS ran at the winter caps and under the standards; SG at venues that reopened only in late January and February at twenty-five percent; LS lost the hiring window for the 2021 season; CC remained remote in the telework States; HR at fingerprint and licensing sites reopened by appointment; OP under the federal workplace infection-prevention order (face coverings and distancing) at every federal site; WF under the conveyance order and the school reopenings that came in March; CB under the winter orders through their expiry.123
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 continuing winter orders (Ex. CA-020; Ex. PA-022; Ex. MI-054; Ex. NJ-004; Ex. NJ-036; Ex. IL-031; Ex. WA-056; Ex. OR-035; Ex. MA-043; Ex. KY-033; Ex. NV-030), the federal workplace and contractor orders (Ex. FED-060; Ex. FED-270), the conveyance order (Ex. FED-020; Ex. FED-050), the workplace standards (Ex. VA-037; Ex. CA-023; Ex. OR-032; Ex. SEC-12-059), the entry proclamations (Ex. SEC-19-006; Ex. SEC-19-007; Ex. FED-207) and the metro orders (Ex. MET-DEN-009; Ex. MET-DEN-010; Ex. MET-STL-075; Ex. MET-MSY-018; Ex. MET-KC-064), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by keeping the customer sites capped and the call floors remote through the winter, by holding every federal site the industry serves to a quarter of its occupancy, by placing every commute under the conveyance order's face-covering requirement, an airborne-transmission control on every conveyance and transportation hub, and by closing the seasonal labor pathway through the hiring window.
The second quarter of 2021
On April 1, 2021 Pennsylvania's telework mandate had three days to run (it ended April 4); New Jersey's Executive Order 107 paragraphs 10 and 11 ran to June 4; MIOSHA's remote-work rule ran to May 24 and its rules to June 22; California's Blueprint kept offices remote in the Purple and Red tiers to June 15; New York's fifty-percent office ceiling ran to May 19; Connecticut's Sector Rules to May 20; Massachusetts's forty-percent office cap to May 29; Minnesota's rules to May 28; Illinois's to June 11; Washington's and Oregon's frameworks to June 30; New Mexico's to June 30.124 The federal occupancy cap ran to June 10 and Executive Order 13991 throughout; the conveyance order, the entry proclamations and the land-border notices were in force every day; Proclamation 10199 added India on May 4.125 Three third-quarter instruments took effect in the quarter: the FY2021 H-2B supplemental rule (May 25, 2021; 22,000 visas, 16,000 for returning workers, through September 30, 2021, on an attestation of irreparable harm); Cal/OSHA's readopted standard (June 17, 2021); and OSHA's Healthcare ETS (June 21, 2021). Kansas's KDHE order of June 18, 2021 continued adult-care-home staff testing for the staffing agencies, therapists and vendors who enter facilities; CMS's vaccination-offering rule reached "all regular on-site staff and contractors" from May 21.126 The metros ran their own layer, dial and capacity orders and the face-covering orders that were their workplace infection-prevention and exposure-control requirements on every business operator, to their own dates: Denver's, Tri-County's, Jefferson County's and Boulder County's dial orders kept capacity restrictions to May 15-16 with automatic re-imposition mechanisms to August 15-16 and September 15; Marion County's Council ratified its health orders on May 10 and June 7 and lifted them July 1; Minneapolis's face-covering regulation on "[a]ll employers of businesses that are spaces of public accommodation" ran to June 1; St. Louis City and County ended their caps May 3 and their face-covering orders May 13-14; Kansas City and Jackson County lifted their face-covering orders May 14; Johnson County's order requiring every business to make every employee wear a face covering "in any space visited by customers or members of the public, regardless of whether anyone from the public is present" ran to April 30; Honolulu's Tier 3 ran to June 9 and Tier 4 from June 9; New Orleans's caps to May 28; Clark County's Local Mitigation and Enforcement Plan (eighty percent; three feet) to June 1; Hillsborough, Pinellas, Pasco, Orange and Seminole Counties' face-covering orders to May 3, 2021.127 On June 30, 2021 the statewide business directives had ended in nearly every State, while the Healthcare ETS, Cal/OSHA's standard, Virginia's and Oregon's standards, the conveyance order, the Kansas order, the H-2B rule and the State emergencies of California, Washington, Oregon, Illinois, New Mexico, Nevada, Hawaii, the District, Kentucky, Louisiana and others were in force.128
PL and JS at the last caps and then under the standards and the Healthcare ETS at every health-care site; SG at venues reopened through May and June; LS on the season's labor as rationed by the May 25 rule; CC remote to the stepped expiry of the telework commands; RC at fingerprint and licensing sites reopened by appointment (the Fayette County Clerk, for example, resumed in-person transactions only on April 12, 2021); HR and OP under the federal contractor orders and the standards; WF under the conveyance order and the school reopenings; CB under the last caps.129
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 telework and capacity orders in force to their stepped expiry (Ex. PA-033; Ex. NJ-004; Ex. NJ-051; Ex. MI-054; Ex. CA-017; Ex. CA-029; Ex. NY-054; Ex. CT-046; Ex. MA-048; Ex. MN-038; Ex. WA-065; Ex. OR-043; Ex. NM-057), the workplace standards (Ex. VA-037; Ex. CA-024; Ex. OR-041), the Healthcare ETS (Ex. SEC-19-009), the federal workplace, conveyance and entry orders (Ex. FED-060; Ex. FED-270; Ex. FED-271; Ex. FED-020; Ex. FED-051; Ex. FED-208), the health-care staff instruments (Ex. FED-094; Ex. KS-052), the H-2B rule (Ex. SEC-19-008) and the metro dial orders and face-covering orders, the exposure-control requirements enforced against every business operator (Ex. MET-DEN-014; Ex. MET-DEN-079; Ex. MET-KC-064; Ex. MET-MSP-009; Ex. MET-LAS-003; Ex. MET-TPA-008), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by holding the customer sites and call floors to the caps and telework rules until the dates on which each order ended, by binding every workplace in the standard States, by conditioning every health-care site from June 21, and by rationing the season's labor.
The third quarter of 2021
(A) The Service's premise and what the statute asks
The Service's letters state for this quarter:
Our records indicate 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.
The statute asks whether, during the quarter beginning July 1, 2021 and ending September 30, 2021, the operation of the trade or business was fully or partially suspended due to orders from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19. Congress re-enacted that clause on March 11, 2021 for exactly this quarter, with knowledge of the Notice and of the orders then in force, and preserved it when it terminated the fourth quarter on November 15, 2021.130 For this industry the quarter's orders are not the residue of 2020; they are new instruments, issued in July, August and September 2021, whose text reaches the industry's people by the words "contract staff," "contractors," "custodial services," "housekeeping services," "goods and services providers," "employed by an entity that is contracted to provide services" and "any business that a covered entity has hired to perform work within a covered premise." The inventory in (B) lists only instruments in force on some day of the quarter; the closing paragraph names the expired instruments on which the proof does not rest.
(B) The instruments in force July 1 to September 30, 2021: the federal layer
The OSHA COVID-19 Healthcare Emergency Temporary Standard, 29 C.F.R. § 1910.502, issued June 21, 2021 under 29 U.S.C. § 655(c). Operative clause: the standard "applies to all settings where any employee provides healthcare services or healthcare support services," and "[h]ealthcare support services means services that facilitate the provision of healthcare services. Healthcare support services include patient intake/admission, patient food services, equipment and facility maintenance, housekeeping services, healthcare laundry services, medical waste handling services, and medical equipment cleaning/reprocessing services"; "[t]he employer must develop and implement a COVID-19 plan for each workplace," screen every employee before each shift, limit and screen entry, distance, install barriers, follow cleaning and disinfection practices, ventilate, provide paid medical removal and paid vaccination leave. Compliance dates: July 6, 2021 for most paragraphs; July 21, 2021 for barriers, ventilation and training. Enforcement: citations and penalties under section 17 of the OSH Act; inspection under DIR 2021-02 and the revised National Emphasis Program of July 7, 2021, which names "Temporary Help Services NAICS 561320" among its targeted industries. Status: in force July 1 and September 30, 2021, withdrawn December 27, 2021. Functions: PL (every agency nurse, aide, dietary and environmental-services placement in a covered setting), JS (every hospital and clinic housekeeping contract, named in the definition), SG (every security post in a covered setting), HR, OP.131 The Safer Federal Workforce Task Force's Agency Model Safety Principles (revised July 29, 2021), issued under Executive Order 13991: every on-site contractor to attest to vaccination status or to mask, distance and submit to weekly testing, with the Certification of Vaccination form issued August 6, 2021; in force July 29 through September 30; functions PL, JS, SG (every guard, cleaner and temporary worker at a federal site).132 Executive Order 14042 (September 9, 2021), issued under the Federal Property and Administrative Services Act: every covered contract to carry a clause requiring compliance with the Task Force's guidance; the guidance of September 24, 2021 defined "covered contractor employee" to include employees "who are not themselves working on or in connection with a covered contract" and provided that its protocols "apply to all covered contractor employees, including contractor or subcontractor employees in covered contractor workplaces who are not working on a Federal Government contract"; vaccination by December 8, 2021; OMB's determination of September 28, 2021 recited that the order "will improve economy and efficiency by reducing absenteeism and decreasing labor costs"; enforcement by contract clause; in force from September 9, with clauses required in solicitations from October 15; functions PL, JS, SG, HR, WF (janitorial, guard and staffing companies are among the largest federal service contractors, and the order reached their entire workforces at covered workplaces).133 The CDC's conveyance order (effective February 1, 2021), issued under 42 U.S.C. § 264, an airborne-transmission control on every conveyance and transportation hub: "Persons must wear masks over the mouth and nose when traveling on conveyances into and within the United States" and "at any transportation hub"; operators "must require all persons onboard to wear masks for the duration of travel"; enforced by TSA Security Directives 1582/84-21-01A (to September 13) and -01B (from September 14) with civil penalties, "including those already vaccinated"; in force every day; functions WF (every transit commute of the industry's hourly workforce), SG and JS (every airport and transit post the industry staffs and cleans).134 The DHS and DOL FY2021 H-2B supplemental rule (May 25, 2021): 22,000 visas, 16,000 limited to returning workers and 6,000 to nationals of El Salvador, Guatemala and Honduras, available through September 30, 2021 on an attestation of irreparable harm; in force every day; functions LS, HR (the conditions under which the season's landscaping labor was obtainable).135 CMS's nursing-home rules: 42 C.F.R. § 483.80(h) (testing of "facility staff, including individuals providing services under arrangement and volunteers"); § 483.80(d)(3) (vaccination education, offering and reporting for "all regular on-site staff and contractors"); QSO-20-39-NH as revised April 27, 2021 (screening of all who enter and exclusion of exposed or symptomatic entrants "regardless of the visitor's vaccination status"); in force every day; functions PL, JS, SG at every nursing home.136 Proclamations 9984, 10143 and 10199 suspended entry from China, the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa and India on every day of the quarter and were revoked only effective November 8, 2021; the DHS notifications of June 23, July 22, August 23 and September 22, 2021 continued the prohibition of non-essential land travel from Canada and Mexico; the Title 42 order and the inbound-testing order were in force every day; functions HR, LS, WF, CB.137 Executive Order 13991 and OMB M-21-15's infection-prevention provisions (face coverings, distancing, visitors minimized) governed every federal building the industry cleans, guards and staffs, and M-21-25 required every agency to file a reentry plan by July 19, 2021; the Department of Defense's travel restrictions ran "until further notice," and the Department required attestation and testing of on-site contractor personnel from September 13, 2021.138
The instruments in force: the State vaccination and testing mandates that name contract staff
New York's 10 NYCRR § 2.61 (adopted August 26, 2021), issued by the Public Health and Health Planning Council under Public Health Law §§ 225, 2803, 3612 and 4010: "'Personnel' ... shall mean all persons employed or affiliated with a covered entity, whether paid or unpaid, including but not limited to employees, members of the medical and nursing staff, contract staff, students, and volunteers"; "[c]overed entities shall continuously require personnel to be fully vaccinated against COVID-19, with the first dose for current personnel received by September 27, 2021 for general hospitals and nursing homes, and by October 7, 2021 for all other covered entities"; enforced by Public Health Law § 12 civil penalties and licensure; in force from August 26 through September 30, 2021 and beyond; functions PL, JS, SG, HR.139 New Jersey's Executive Order 252 (August 6, 2021; requirement effective September 7, 2021), issued under N.J.S.A. App. A:9-33 et seq. and P.L. 2021, c. 103: every covered health-care and congregate setting "must maintain a policy that requires covered workers to either provide adequate proof that they have been fully vaccinated or submit to COVID-19 testing at minimum one to two times weekly," and "'covered workers' shall include employees, both full- and part-time, contractors, and other individuals working in covered settings, including individuals providing operational or custodial services or administrative support"; enforced as a disorderly persons offense; in force from August 6, operative from September 7, through September 30 and beyond; functions PL, JS, SG, HR, WF.140 Illinois's Executive Order 2021-20 (August 26, 2021): "Beginning on Monday, August 30, 2021, all individuals in Illinois who are age two or over and able to medically tolerate a face covering ... shall be required to cover their nose and mouth with a face covering when in an indoor public place"; "'Health Care Worker' means any person who (1) is employed by, volunteers for, or is contracted to provide services for a Health Care Facility, or is employed by an entity that is contracted to provide services to a Health Care Facility"; "Health Care Facilities shall exclude Health Care Workers who are not fully vaccinated against COVID-19 from the premises unless they comply with the testing requirements," testing from September 5 and first doses by September 5, 2021; enforced under 20 ILCS 3305/7 and Illinois Department of Public Health ("IDPH") licensure; in force from August 26 (face coverings from August 30), restated with amendments by Executive Order 2021-22 on September 3, 2021, and continued through September 30 and beyond; functions CC and OP (every call floor and office in Illinois placed under the face-covering requirement, an airborne-transmission control on every indoor public place), PL, JS, SG, HR (every health-care and school site).141 California's State Public Health Officer orders of July 26, 2021 (vaccination verification or testing of every worker in health-care and the designated congregate settings), August 5, 2021 (every worker "who provide[s] services or work[s] in" a covered health-care facility, "including ... contractors," fully vaccinated by September 30, 2021) and August 11, 2021 (every school to "verify vaccine status of all workers"; unvaccinated workers "must be tested at least once weekly"; full compliance by October 15, 2021), each issued under Health and Safety Code §§ 120125, 120140 and 120175 and enforced under § 120275; in force from their dates through September 30 and beyond; functions PL, JS, SG, HR.142 Washington's Proclamation 21-14 (August 9, 2021) required "all employees, on-site independent contractors, volunteers, goods and services providers, and appointees of designated state agencies to be fully vaccinated against COVID-19 on or before October 18, 2021," and Proclamation 21-14.1 (August 20, 2021) prohibited "[a]ny Worker from engaging in work for the operator of an Educational Setting after October 18, 2021 if the Worker has not been fully vaccinated" and "[a]ny Health Care Provider from failing to be fully vaccinated against COVID-19 after October 18, 2021"; enforced as a gross misdemeanor under RCW 43.06.220(5); in force from August 9 and 20 through September 30 and beyond, with the October 18 deadline requiring verification and hiring decisions inside the quarter; functions PL, JS, SG, HR.143 Oregon's Executive Order 21-29 (August 13, 2021) required vaccination by October 18, 2021 of every "Worker," defined to include contractor personnel "required to work in person and on site at an Executive Branch worksite," and the Oregon Health Authority's OAR 333-019-1010 (August 5, 2021) required every health-care provider and staff member to be vaccinated or tested weekly by September 30, 2021, and, as replaced August 25, 2021, to be vaccinated by October 18, 2021; functions PL, JS, SG.144 New Mexico's Public Health Order of August 17, 2021 (effective August 20) reimposed indoor face coverings statewide, an airborne-transmission control on every indoor workplace and public setting, and required vaccination of hospital, congregate-care and school workers, reaching "contractual staff not employed by the hospital" and school contractors; functions PL, JS, SG, CC.145 Connecticut's Executive Order 13B (August 6) and, from September 3, Executive Order 13F required vaccination of long-term-care staff, the deadline moved from September 7 to September 27, 2021, under a penalty of $20,000 per day, its Department of Public Health ordered weekly testing of unvaccinated staff from August 11, and Executive Orders 13D and 13G required State, school and child-care workers to be vaccinated or tested weekly from September 27; Massachusetts's Public Health Emergency Order No. 2021-4 (August 4) required nursing-home staff vaccination by October 10, 105 CMR 159.000 (September 8) reached home-care workers and Executive Order 595 (August 19) reached State employees; Maryland's Secretary of Health ordered on August 18 that "[a]ll staff" of every hospital and nursing home be vaccinated, with proof of a first dose by September 1, or tested (Ex. MD-058), continued and extended to assisted-living programs from September 8, 2021 (Ex. MD-060); Rhode Island's Department of Health rule of August 17 required unvaccinated health-care staff to wear face coverings and test twice weekly at once and all to be vaccinated by October 1, after which facilities were to "deny entrance"; Maine's rule of August 12 reached health-care, EMS and dental employees; Delaware's Emergency Secretary's Orders of September 10, 2021, effective September 30, required COVID-19 testing of every new staff member, vendor and volunteer at every home health agency and hospital; DC Health's requirement announced August 16, 2021 required every District health-care worker's first dose by September 30, and the District's Mayor's Order of September 20, 2021 reached every adult regularly in a school or child-care facility; Colorado's Board of Health adopted its health-care-worker rule August 30 (Ex. CO-055); Kansas's KDHE order of June 18 continued adult-care-home staff testing throughout; each in force from its date through September 30, 2021; functions PL, JS, SG, HR.146 New Jersey's Executive Order 264 (September 20, 2021) required face coverings, an infection-prevention control on every child-care setting, of every child-care "covered worker," including "custodial and administrative staff, contractors," from September 24; New York's 10 NYCRR § 2.62 (September 2) required weekly testing of unvaccinated school staff and contractors; functions PL, JS, WF.147
The instruments in force: the workplace standards and the infection-prevention and face-covering orders of the States
Cal/OSHA's 8 CCR 3205 as readopted June 17, 2021 bound every California workplace to a written prevention program, paid exclusion of exposed employees, testing, notification, cleaning and face coverings; Virginia's 16VAC25-220 bound "every employer, employee, and place of employment," amended September 8, 2021; Oregon OSHA's OAR 437-001-0744 bound every Oregon workplace and AO 10-2021 renewed the rule's indoor face-covering requirement from August 13; Washington's WAC 296-800-14035 made the Governor's requirements workplace law and was readopted July 6, August 23 and September 20, 2021, the Secretary of Health reimposed universal indoor face coverings from August 23, and Proclamation 20-25.15 (August 20, 2021; effective August 23) made the requirement a workplace exposure-control duty, prohibiting every business and entity from admitting a person without a face covering and requiring every employee to wear one and signage to be posted, with twenty-four-hour outbreak reporting (Ex. WA-080; continued by Ex. WA-082 and Ex. WA-085); New York's 12 NYCRR Part 840 required every private employer to adopt an exposure-prevention plan by August 5, 2021, and the Commissioner of Health's designation of September 6, 2021 activated every plan (screening, face coverings, distancing, cleaning, posting), enforced by civil penalties and a private right of action, and was continued September 30; each in force on July 1 or from its in-quarter date and on September 30; functions PL, JS, SG, CC, OP.148 Nevada's Directive 047 (July 27, 2021; effective July 30) required a face covering of every person indoors in every county of substantial or high transmission, Clark and Washoe throughout, an airborne-transmission control that Directive 048 (August 4) extended in terms to office buildings, breakrooms and meeting rooms; statewide indoor face-covering orders, the airborne-transmission control each State imposed on every indoor workplace and public setting, re-conditioned every customer site in Louisiana (August 4), the District of Columbia (July 31), New Mexico (August 20), Oregon (August 13), Washington (August 23), Illinois (August 30) and Hawaii (throughout), and Connecticut's Department of Public Health ordered universal face coverings in every school, child-care facility, health-care setting, shelter, correctional and transit setting from August 7; New Mexico's order of June 30, 2021 (Ex. NM-060) required face coverings of every person not fully vaccinated and adherence by every business to the COVID-Safe Practices, an exposure-control regime enforced on pain of a $5,000 penalty, from July 1, 2021, and the order of August 17, 2021 (Ex. NM-067) reinstated face coverings for all persons from August 20; Rhode Island's Reopening Order and face-covering order (Executive Orders 21-68 and 21-69) ran to July 6, 2021 (Ex. RI-043; Ex. RI-044) and its Safe Activities regulation bound every establishment to entrance screening notices and operating duties to August 31, 2021 under $500 civil penalties (Ex. RI-071); each enforced by fine or employer duty and in force from its date through September 30 or to the end date stated; functions PL, JS, SG, CC, OP, WF.149 The emergency instruments of Massachusetts (Ex. MA-049), Hawaii (Ex. HI-023; Ex. HI-024), Texas (Ex. TX-001; Ex. TX-038), Arizona (Ex. AZ-001, to March 30, 2022), Colorado (Ex. CO-069 to July 8, then the Disaster Recovery Order D 2021 122, Ex. CO-043), North Carolina (Ex. NC-001), Kentucky (Executive Order 2020-215, Ex. KY-001, extended to January 15, 2022 by House Joint Resolution 1, Ex. KY-056), Louisiana, Nevada, New Mexico, Illinois, Washington, Oregon and California remained in force throughout the quarter as the declarations under which the quarter's face-covering, health-care, school and court orders issued and were continued; Georgia's Economic Recovery State of Emergency ran from June 30, 2021 (Ex. GA-041; Ex. GA-043); Delaware's Public Health Emergency ran from July 12, 2021 (Ex. DE-041) after its State of Emergency ended July 13; Maryland's emergency and fourteen section II orders ran to August 15, 2021 (Ex. MD-031); Alabama's emergency ran to July 6 and again from August 13, 2021 (Ex. AL-052); Arkansas's ran from July 29 to September 27, 2021 (Ex. AR-017); Tennessee's ran under Executive Orders 81, 82 and 83 in succession (Ex. TN-033; Ex. TN-034; Ex. TN-035); where an instrument carried operative provisions of its own it is relied on for them. Michigan's Public Act 238 (Ex. MI-057) and Pennsylvania's Act 21 of 2021 (Ex. PA-040) governed throughout, and Pennsylvania's Act 73 of 2021, enacted September 30, 2021, extended Act 21's suspensions to March 31, 2022 (Ex. PA-043).150
The instruments in force: the school orders
The school orders of the 2021-22 year imposed infection-prevention and exposure-control regimes on every school building, of which universal face coverings were the common element and weekly testing of unvaccinated staff, quarantine of exposed persons and staff vaccination the companions where the order so provided. Pennsylvania's Secretary of Health ordered face coverings in every school entity and child-care facility from September 7, 2021; Kentucky's Executive Order 2021-585 (August 10) imposed face coverings in every school to September 7; Florida's Executive Order 21-175 (July 30, 2021) (Ex. FL-063) governed every district's school face-covering rule for the year; New Jersey's Executive Order 251 (August 9) imposed face coverings in every school and Executive Order 253 (August 23) required vaccination or testing of every school worker by October 18; California's order of August 11 required verification and weekly testing of every unvaccinated school worker; Washington's Proclamation 21-14.1 required vaccination of every worker in an educational setting by October 18; Illinois's Executive Order 2021-20 imposed face coverings in every school and required vaccination or testing of school personnel; Massachusetts's DESE required face coverings from August 25; New Mexico's order of August 17 imposed face coverings in every school and required vaccination or testing of every school worker; the county and city orders of Oakland (August 24), Wayne (August 27), Denver (August 17), Boulder (Public Health Order 2021-07, issued August 9, effective August 10), Tri-County (August 23 and September 1), Jefferson County, Colorado (Public Health Order 21-002, effective August 17, amended August 28), Johnson County, Kansas (Order 001-21, issued August 5, effective August 9), Salt Lake City (August 20), Summit County (August 25), Shelby County (August) and the Harris County Local Health Authority (August 12) imposed face coverings in every school in their jurisdictions, several with weekly testing of unvaccinated staff; each in force from its date through September 30, 2021, except Kentucky's Executive Order 2021-585, in force August 10 to September 7, 2021 (Ex. KY-052); functions PL, JS, SG (every custodial, security and substitute placement at a school), WF (the children of the industry's workforce).151
The instruments in force: the metros
The metro instruments of the quarter fall into three classes: proof-of-vaccination conditions on entry to covered premises, vaccination-or-testing conditions on the personnel of governments and their contractors, and universal indoor face-covering orders, the last a workplace infection-prevention and exposure-control requirement enforced against the operator of the premises, the persons on them, or both, and described here as such; where an order also compelled screening, distancing, capacity limits, posting or testing, the text says so. New York City's Emergency Executive Order 225 (August 16, 2021; effective August 17; enforcement from September 13): "a covered entity shall not permit a patron, full- or part-time employee, intern, volunteer, or contractor to enter a covered premises without displaying proof of vaccination," with "Contractor" defined as "the owner and/or employees of any business that a covered entity has hired to perform work within a covered premise," enforced by New York City Department of Health and Mental Hygiene ("DOHMH") inspection and civil penalties; functions SG, JS, PL, HR, CB.152 Los Angeles County required face coverings in every indoor space from July 17 and required health-care-worker vaccination from August 12; the eight Bay Area health officers required face coverings in every indoor space from August 3, and San Francisco required proof of vaccination of the patrons of indoor dining, bars, gyms and large events from August 20 and of their personnel by October 13; Chicago required face coverings in every business from August 20 and Cook County from August 23; Dallas County required every commercial entity to adopt a Health and Safety Policy with universal indoor face coverings from August 11 on pain of a $1,000 fine, and Bexar County's NW-21 (August 10) continued the posting duty on every commercial entity and adopted the Local Health Authority's school face-covering and quarantine directive countywide; Philadelphia required face coverings in every indoor space from August 12, regulated health-care-worker vaccination from August 16 and noticed its City contractors of vaccination requirements on September 14; Montgomery County, Maryland required face coverings in every indoor space from August 7, and Baltimore City's Health Commissioner required them in every indoor location other than a private home from August 10, expressly including work "in any area where ... interaction with others is likely, including ... shared areas of commercial offices," under a misdemeanor; Boston announced on August 16 a vaccination-or-testing policy for its employees and onsite contractors, phased in from September 20 (Ex. MET-BOS-041); Seattle's Mayoral Directive 9 (August 9) made vaccination a condition of City employment by October 18 and King County's Executive did the same on August 10, King County's Local Health Officer ordered universal indoor face coverings from September 7 and issued the Verification of Vaccination Order on September 16; Denver's Public Health Order of August 2, 2021 (amended September 1) ordered the personnel and "onsite contractors" of the City, care facilities, hospitals, clinical settings, shelters, correctional facilities, schools, child-care and home-care entities "to be fully vaccinated by September 30, 2021," Boulder County required face coverings in every indoor public space from September 3, and the Tri-County, Jefferson and Boulder dial orders ran to August 15, September 15 and August 16; Minneapolis extended its emergency to November 7 and adopted a City-employee testing and proof-of-vaccination regulation by September 10, Saint Paul required face coverings on all City-controlled property from August 3, Ramsey and Hennepin Counties in every county facility from August 3, and the University of Minnesota of "contractors, service providers, vendors, and suppliers" on every campus from August 2; San Diego County's isolation and quarantine orders removed every case and unvaccinated close contact from every workplace throughout, its Quarantine Order as revised July 22 prescribing return-to-work conditions; Sacramento County required face coverings in "all indoor public settings, venues, gatherings, and workplaces" from July 30 and declared that its order "takes precedence over the more permissive ETS regarding employee face coverings," and Yolo County did the same; San Bernardino County's order of June 15, 2021 bound every licensed entity's "staff, vendors and contractors" throughout and Riverside County's worker-quarantine protocol ran throughout; St. Louis City required face coverings in every indoor public space from July 26 and St. Louis County did so from July 26 until enjoined August 3; Kansas City required them in every indoor place of public accommodation from August 2 by order and from August 19 by ordinance "while performing an activity involving close contact or proximity to co-workers or the public," Jackson County from August 9, Johnson County's Board of Health imposed face coverings in every school from August 9, and the Unified Government from August 5-6; Clark County required face coverings of every employee of every indoor public-facing business from July 22 and the Eighth Judicial District Court required them in every court facility from July 19; New Orleans required face coverings in every indoor space from July 31, required proof of vaccination or a negative test for entry to every restaurant, bar, gym, event space and casino from August 16 and required every public-facing City-contractor employee to be vaccinated or tested from August 30, Jefferson Parish required them in every indoor place outside a private residence from August 4, and Baton Rouge in every City-Parish building from July 30; Honolulu's Tier 5 order conditioned every Designated Business from July 8, its August 23 amendment cut gatherings to ten indoors, Safe Access O'ahu required proof of vaccination or a negative test of "patrons, employees, and contractors" of restaurants, bars, gyms and indoor attractions from September 13, and the Safe O'ahu Response Plan closed every indoor event and held every restaurant and bar to fifty percent from September 22; Maui's Safer Outside rules took effect September 15 and Kauai's Rule No. 26 on September 3; Cuyahoga County conditioned entry to every county building on a face covering and a temperature screen from August 3 and its Common Pleas court ordered every employee and every appointed attorney, mediator and fiduciary vaccinated by October 15; Columbus required face coverings in every place of business and every manufacturing, construction and agricultural workplace by NAICS code from September 10 and its Public Health department required employee vaccination by November 1; Mecklenburg County's Board of Health Rule ordered from August 31 that "All businesses, establishments, and public places must require that all persons wear Face Coverings when indoors on their premises," enforceable by misdemeanor and abatement "up to and including shutting down a facility's operations," and Charlotte, Raleigh, Durham, Orange and Wake Counties required face coverings in every indoor space from August 11-18; Dane County required them in every enclosed public space from August 19; Orange County, Florida declared a new emergency July 28 and renewed it weekly; Pittsburgh re-imposed its eighty-hour COVID-19 sick-time mandate on every employer of fifty or more on July 27 and Allegheny County and Pittsburgh conditioned their own workforces and new hires from August 9; Louisville required face coverings in every Metro building and vehicle from August 2; Salt Lake City required them of every employee and visitor in City buildings from July 28 and in every school from August 20, Summit County in its schools from August 25; Tampa ordered its 4,200-employee workforce vaccinated or tested weekly and to wear face coverings daily on September 7 and Hillsborough's emergency ran throughout; Marion County's courts required face coverings in every court facility from August 17; Hamilton County's courts did the same from August 11; each in force from its date through September 30, 2021 unless a date is stated; functions PL, JS, SG, CC, OP, WF, CB.153
The instruments in force: the sector regulators, counterparties and workforce
The OSHA revised National Emphasis Program of July 7, 2021 named temporary help services as a targeted industry (posture only). The Department of Transportation's Acquisition Directive 2021-02 (September 17) required every on-site contractor employee at DOT facilities to attest to vaccination or be tested. The State paid-leave mandates of New York, New Jersey and Colorado compelled the industry to pay every quarantined worker not to work. The isolation and quarantine orders of San Diego, Sacramento, Riverside, Dane and other counties, and the exposure-quarantine rules of the District and the States, removed every infected and exposed worker from every assignment for ten to fourteen days. The courts of at least twenty-nine States and the federal courts kept proceedings remote, restricted access and imposed face-covering requirements, airborne-transmission controls, in every courthouse in which the industry's guards and cleaners work, among them the Minnesota Supreme Court's Order Governing the Continuing Operations of the Judicial Branch of July 30, 2021 (Ex. MN-054), the Supreme Court of Kentucky's Administrative Orders 2021-27 and 2021-28 of August 9, 2021 (Ex. KY-058; Ex. KY-059), the Hawaii Supreme Court's Order Postponing Jury Trials of August 16, 2021 (Ex. HI-068) and the Supreme Court of Florida's Administrative Order AOSC21-17 (Ex. FL-069). The H-2B rule's conditions governed the season's labor to September 30.154
(C) How they reached the functions
PL: every placement in a hospital, clinic or nursing home operated from July 6 and 21 under a written COVID-19 plan, daily screening, distancing, barriers, ventilation and paid removal, and from late August under mandates that named the placed worker as "contract staff" or a "contractor" and required a first dose by September 27 (New York), a policy by September 7 (New Jersey), testing by September 5 (Illinois) and vaccination by September 30 (California, Denver), October 1 (Rhode Island), October 4 (Illinois), October 7 (New York's other entities), October 10 (Massachusetts) and October 18 (Washington, Oregon); every placement at a school operated under the face-covering, testing and staff-vaccination orders of the 2021-22 year; every placement at a federal site operated from July 29 under attestation or testing and from September 9 under the President's order that the clause requiring vaccination of the contractor's workforce be inserted in every covered contract; every placement in Nevada, Louisiana, the District, New Mexico, Oregon, Washington, Illinois, Hawaii and the metros above operated under the face-covering orders, airborne-transmission controls on the customer's premises, from the dates stated. JS: every hospital housekeeping contract was a "healthcare support service" under the ETS from July 6; every school custodial contract ran under the school orders; every federal custodial contract under the Task Force rules and Executive Order 14042; every contract at a covered premises in New York City required proof of vaccination of the contractor's employees from August 17, enforced from September 13; every cleaning contract in New Jersey's covered settings ran under a vaccination-or-testing policy from September 7 that named "custodial services" by name. SG: every guard post at a hospital, school, federal building or courthouse operated under the corresponding orders; every post at a New York City restaurant, gym, theater or arena stood at the door as the covered entity's means of enforcing the proof-of-vaccination order; every post in New Orleans, San Francisco, Honolulu and King County did the same from August 16, August 20, September 13 and, by order issued September 16, October 25. LS: the season's labor was rationed by the May 25 rule to September 30; the entry proclamations and land-border notices governed every day; the crews worked under the face-covering orders, airborne-transmission controls on every indoor workplace, of the States and metros that issued them. CC and OP: every call floor and office was placed under an indoor face-covering requirement, an airborne-transmission control imposed on the workplace by order, in Illinois from August 30, in Nevada from July 30, in Louisiana from August 4, in the District from July 31, in New Mexico from August 20, in Oregon from August 13, in Washington from August 23, in Los Angeles County from July 17, the Bay Area from August 3, Sacramento from July 30, Philadelphia from August 12, Chicago from August 20, Dallas County from August 11, St. Louis from July 26, Kansas City from August 2, New Orleans from July 31, Baltimore from August 10, Mecklenburg from August 18 and 31, Dane County from August 19 and Columbus from September 10; every New York office adopted and activated an exposure-prevention plan; every California, Virginia, Oregon and Washington office ran under a workplace standard. HR and RC: hiring for every health-care, school and federal placement required verification of vaccination status and, for the unvaccinated, testing or exclusion; the H-2B pathway was rationed; the entry proclamations barred the foreign hires. WF: the commute under the conveyance order's face-covering requirement, an airborne-transmission control, every day; the workforce's children under the school orders' face-covering, testing and quarantine regimes; every infected and exposed worker removed by the isolation and quarantine orders; paid leave compelled in three States. CB: every customer industry under its own third-quarter orders, catalogued on this site's other industry pages.
(D) The continuing-suspension analysis
The clause asks whether the operation "is fully or partially suspended during the calendar quarter"; "during the calendar quarter" modifies "suspended," and Congress did not write "orders in effect during the quarter." Tri-State defines a suspension to include a "delay" and holds causation to be but-for. The Notice recognizes both halves of the point: Q&A-22 makes an employer suspended for part of a quarter eligible for the whole quarter, and Q&A-16 recognizes that "a significant delay (for example, beyond 2 weeks)" in moving between modes of operation is itself a partial suspension.155 Four pathways carry the suspension of this industry into the third quarter of 2021. First, the instruments in (B) were each in force on some day of the quarter, most of them on every day, and each was itself an order limiting commerce, travel or group meetings; the proof for the quarter rests on them and needs no other. Second, the orders of March 2020 through June 2021 compelled this industry to dismantle its operation, and the orders' own reopening steps show that the dismantling was not restored on July 1, 2021. Temporary-help payrolls fell by 937,700 between February and April 2020 because the customer sites were ordered closed, and the customer sites were readmitted by steps the orders fixed: offices at twenty-five and fifty percent between May 11 and June 22, 2020, cut again to ten, twenty-five or zero percent between October 14 and December 26, 2020, and freed between April 4, 2021 (Pennsylvania) and June 30, 2021 (Oregon and Washington), with New Mexico on July 1; manufacturing under written-plan, screening and distancing rules from its reopening in May 2020 through the standards' dates; venues closed through the summer of 2020, capped or closed again through the winter, and reopened at full capacity only between April and June 2021 (Marion County July 1; Clark County June 1; New Orleans May 28; Honolulu never in the period). A placement terminated in March 2020 was not restored when the customer's order lifted; it was restored when the customer rehired, and the orders' step dates fix the earliest day that could occur. The landscaping segment's labor pathway was closed from March 20, 2020 (consular suspension) and June 24, 2020 (Proclamation 10052) to March 31, 2021, so that the 2021 season opened without the workers the industry would otherwise have had, and the May 25, 2021 rule rationed the replacement to 22,000 visas nationwide through September 30; a crew that could not be hired in the hiring window was not on the job on July 1. Security-guard and other credentials that expired unrenewed in 2020 because the licensing offices were closed, and hiring classes delayed because fingerprint sites were closed for a year, were restored at the pace of the offices' reopening (the Fayette County Clerk on April 12, 2021; Lexington's government buildings on June 11, 2021), and every guard hired under the order-extended permits had to be re-credentialed when the extensions ran out. The orders' own step dates fix the arithmetic; the interconnected-economy section states it. Third, the counterparties on which each function depends were themselves under the orders in (B), so that the industry's functions were interrupted by orders addressed to others in the sense Q&A-12 recognizes and the United States has admitted: the hospital under the ETS and the mandates, the school under the face-covering, testing and staff orders, the federal agency under the Task Force rules, the venue under the proof-of-vaccination order. Fourth, the federal general layer and the workforce orders were in force on every day and reached every employer in the industry: the conveyance order on every commute, the isolation and quarantine orders on every exposed worker, the entry proclamations on every foreign hire.156
(E) The answers to the Service's grounds for the quarter
That no orders were in effect: the instruments in (B) were in effect, with dates, and the Service's sentence describes a quarter that did not occur. That the industry was "essential": the designation permitted work in 2020; it exempted no placement from the Healthcare ETS, no cleaner from the New Jersey or New York mandates, no guard from the Key to NYC order, no call floor from the Illinois face-covering order, and the statute does not use the word. That the industry could telework: no cleaner, guard, placed production worker or landscaper works from home, and the call centers' telework was the compelled modification, not the absence of one. That the orders reached customers, not the business: 10 NYCRR § 2.61, Executive Order 252, Executive Order 2021-20, Proclamation 21-14, Executive Order 21-29, Emergency Executive Order 225 and the Task Force guidance name the contract worker, the contractor, the custodial service and the goods and services provider by those words. That the measures were voluntary: a COVID-19 plan adopted because 29 C.F.R. § 1910.502(c) required it and a vaccination policy adopted because Executive Order 252 required it are not voluntary. That the effect was nominal: an industry whose health-care placements, school contracts, federal contracts and largest-metro venue contracts were each conditioned on the vaccination, testing, screening, face coverings and exclusion of its workers, whose call floors were placed under face-covering and exposure-control orders in a dozen States and metros and whose seasonal labor was rationed had more than a nominal portion of its operations delayed, interrupted or terminated, and the ten percent figure is, by the United States' own account, a safe harbor and not a floor. That the orders had lifted: the orders in (B) had not; the orders that had lifted are named below.157
(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 OSHA Healthcare ETS (Ex. SEC-19-009), the federal contractor, workplace, conveyance, entry, border and nursing-home orders (Ex. FED-272; Ex. FED-278; Ex. SEC-19-010; Ex. SEC-19-020; Ex. FED-275; Ex. FED-060; Ex. FED-020; Ex. FED-051; Ex. FED-052; Ex. FED-207; Ex. FED-208; Ex. FED-232; Ex. FED-255; Ex. FED-092; Ex. FED-094; Ex. FED-156), the H-2B rule (Ex. SEC-19-008), the State vaccination, testing and face-covering mandates whose definitions reach contract staff (Ex. SEC-19-023; Ex. SEC-19-027; Ex. SEC-19-026; Ex. CA-031; Ex. CA-030; Ex. SEC-19-024; Ex. SEC-19-042; Ex. WA-077; Ex. SEC-19-025; Ex. OR-047; Ex. OR-046; Ex. NM-068; Ex. CT-051; Ex. CT-055; Ex. MA-067; Ex. MD-058; Ex. MD-060; Ex. RI-072; Ex. ME-061; Ex. DE-046; Ex. DE-047; Ex. DC-075; Ex. CO-055; Ex. KS-052; Ex. NJ-058), the State workplace standards and face-covering orders (Ex. CA-024; Ex. VA-037; Ex. OR-041; Ex. OR-049; Ex. OR-048; Ex. AGY-ST-LABOR-WORKPLACE-055; Ex. WA-078; Ex. WA-080; Ex. NY-136; Ex. NY-127; Ex. NV-041; Ex. NV-042; Ex. LA-036; Ex. DC-057; Ex. NM-060; Ex. NM-067; Ex. IL-042; Ex. CT-052; Ex. RI-071), the school orders (Ex. PA-042; Ex. KY-052; Ex. NJ-055; Ex. NJ-057; Ex. MA-071; Ex. NY-072; Ex. MET-DET-013; Ex. MET-DET-015; Ex. MET-DEN-024; Ex. MET-HOU-038), the metro orders (Ex. SEC-19-016; Ex. MET-LA-018; Ex. MET-LA-023; Ex. MET-SFO-071; Ex. MET-SFO-011; Ex. MET-CHI-026; Ex. MET-CHI-041; Ex. MET-DFW-028; Ex. MET-SAT-067; Ex. MET-PHL-019; Ex. MET-PHL-065; Ex. MET-DCM-023; Ex. MET-BAL-017; Ex. MET-BOS-041; Ex. MET-SEA-018; Ex. MET-SEA-002; Ex. MET-SEA-001; Ex. MET-DEN-023; Ex. MET-DEN-025; Ex. MET-DEN-033; Ex. MET-MSP-020; Ex. MET-MSP-041; Ex. MET-MSP-062; Ex. MET-SAN-024; Ex. MET-SAC-015; Ex. MET-RIV-031; Ex. MET-STL-021; Ex. MET-KC-002; Ex. MET-KC-045; Ex. MET-LAS-006; Ex. MET-LAS-019; Ex. MET-MSY-027; Ex. MET-MSY-029; Ex. MET-MSY-032; Ex. MET-MSY-063; Ex. MET-HNL-035; Ex. MET-HNL-037; Ex. MET-CLE-009; Ex. MET-CLE-026; Ex. MET-CMH-048; Ex. MET-CLT-001; Ex. MET-MKE-023; Ex. MET-ORL-013; Ex. MET-PIT-055; Ex. MET-PIT-036; Ex. MET-SDF-017; Ex. MET-SLC-029; Ex. MET-SLC-030; Ex. MET-TPA-033; Ex. MET-IND-054; Ex. MET-CIN-007), and the counterparty and workforce instruments (Ex. AGY-ST-LABOR-WORKPLACE-003; Ex. MET-SAN-023; Ex. MET-SAC-016; Ex. MET-RIV-017), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by conditioning every health-care placement, housekeeping contract and guard post on a written plan, screening, distancing, removal and, from late August, the vaccination or testing of the contract worker named in the order; by conditioning every school placement on face coverings, testing and vaccination; by conditioning every federal contract on attestation, testing and the vaccination of the contractor's whole workforce; by requiring proof of vaccination of the contractor's employees before they entered the covered premises of the largest metros; by placing every call floor, office and customer site in the States and metros that ordered it under face-covering and exposure-control requirements; by rationing the season's landscaping labor; by placing every commute under the conveyance order's face-covering requirement, an airborne-transmission control; and by removing every infected and exposed worker from every assignment.
What this analysis does not claim was in force
The proof for the third quarter of 2021 rests on none of the following, each of which had expired before July 1, 2021: the stay-at-home and business-closure orders of March and April 2020 (Ex. NY-002; Ex. PA-002; Ex. NJ-004 ¶¶ 1-9; Ex. CA-002; Ex. SEC-09-031; Ex. WA-016; Ex. IL-005; Ex. OH-011); the essential-list classifications of 2020 (Ex. PA-004; Ex. SEC-19-035; Ex. DE-005 ¶ 8; Ex. NM-006; Ex. SEC-19-001; Ex. SEC-19-002; Ex. SEC-19-003; Ex. SEC-19-034); the landscaping bars and conditions of 2020 (Ex. SEC-19-012; Ex. SEC-19-011; Ex. SEC-19-043; Ex. WA-031; Ex. SEC-09-027; Ex. MET-BOS-122); the State telework mandates, which ended April 4, 2021 (Pennsylvania, Ex. PA-033 ending the mandate of Ex. PA-022), May 24, 2021 (Michigan, the MIOSHA amendment of Ex. MI-054; the rules themselves June 22, 2021), June 4, 2021 (New Jersey, Ex. NJ-051 ¶ 1 rescinding Ex. NJ-004 ¶¶ 10-11) and June 15, 2021 (California, Ex. CA-029 ending the Blueprint of Ex. CA-017), and Michigan's Executive Order 2020-110 (Ex. SEC-19-014); the office and customer-site capacity orders that expired between March 10 and June 30, 2021 (Ex. NY-054; Ex. CT-046; Ex. MA-048; Ex. MN-037; Ex. MN-038; Ex. WA-065 and Ex. WA-072 as to the framework they ended; Ex. OR-043; Ex. NM-057); the winter re-tightening orders (Ex. CA-020; Ex. CO-081; Ex. PA-022; Ex. MA-040; Ex. IL-031; Ex. WA-047; Ex. RI-029; Ex. KY-033; Ex. VT-034; Ex. NV-030; Ex. IA-029; Ex. TX-025; Ex. DC-015); the fingerprint and licensing suspensions of 2020 and their extensions (Ex. ND-018, which ended April 30, 2021; Ex. MN-011, which ended May 27, 2021; Ex. MT-032; Ex. SEC-19-015; Ex. MS-012; Ex. NY-014); Proclamations 10014, 10052 and 10131 (Ex. SEC-19-004; Ex. SEC-19-005; Ex. SEC-19-006; Ex. FED-210; Ex. FED-211; Ex. FED-213), the H-2B suspension having expired March 31, 2021 (Ex. SEC-19-007); the 2020 H-2B rule's flexibility window (Ex. SEC-19-018); the consular suspension and the USCIS closures of 2020 (Ex. FED-327; Ex. FED-324); the FFCRA leave mandate (Ex. FED-170; Ex. FED-171), which ended December 31, 2020; the 2020 OMB telework memoranda and the federal occupancy cap of M-21-15, lifted June 10, 2021 (Ex. FED-264; Ex. FED-268; Ex. FED-270 as to the cap); the $600 supplement (Ex. SEC-19-017); TSA Security Directive 1582/84-21-01 (Ex. FED-050) as superseded by -01A; the metro closure, capacity and face-covering orders that ended before July 1, 2021 (Ex. MET-MSP-009; Ex. MET-MSP-013; Ex. MET-STL-074; Ex. MET-KC-064; Ex. MET-DEN-014; Ex. MET-LAS-003; Ex. MET-TPA-008; Ex. MET-ORL-010; Ex. MET-CIN-001; Ex. MET-CMH-018; Ex. MET-MKE-034; Ex. MET-DET-001, which is not relied on for the quarter); and the instruments dated after September 30, 2021, cited only for what they recite (Ex. FED-209; Ex. MET-MSY-031; Ex. MET-STL-023; Ex. MET-MSP-063; Ex. WY-062; Ex. FED-085). Executive Order 243 (Ex. NJ-051), Executive Order 21-15 (Ex. OR-043) and Proclamation 20-25.14 (Ex. WA-072), together with New Mexico's Public Health Emergency Order of June 30, 2021 (Ex. NM-060; in force July 1 to July 30, 2021, extended by Ex. NM-062) and Texas's GA-34 (Ex. TX-029; in force to July 29, 2021), are named here as the instruments that ended those requirements; they remained in force into or through the quarter and are claimed for the worksite protocols, face-covering rules and emergency provisions they continued, not for what they ended. Instruments that expired or were enjoined within the quarter (St. Louis County's Face Covering Order, Ex. MET-STL-069, enjoined August 3, 2021; Kansas City's Order 21-01, replaced August 19, 2021; the Tri-County and Boulder dial orders, Ex. MET-DEN-079 and Ex. MET-DEN-030, to August 15 and 16; Jefferson County's, Ex. MET-DEN-103, to September 15; Kentucky's Executive Orders 2021-386 ¶ 4 and 2021-585 to September 7, 2021, Ex. KY-049 and Ex. KY-052, terminated by House Joint Resolution 1 § 1, Ex. KY-056, which extended the state of emergency itself to January 15, 2022; Clark County's July 20 measure, Ex. MET-LAS-006, overtaken July 30 by Directive 047) are claimed only for the days they ran. Nor does the proof rest on the enactments and orders of 2021 that barred or ended State and local requirements (Ex. TX-036 as to its prohibitions; Ex. FL-060; Ex. FL-059; Ex. FL-030 as to their prohibitions; Ind. SEA 5; RSMo § 67.265; Utah HB 294 and SB 195; Kan. SB 40), cited only for the dates on which they ended or displaced other instruments.
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.