In plain terms: from March 13, 2020 through September 30, 2021 there was no day on which a business in the United States operated free of government orders limiting commerce, travel or group meetings because of COVID-19. This page lays out that record layer by layer: what the federal government ordered in each quarter; what all fifty States and the District did, region by region; what the largest counties and cities added, often before and beyond their States; how every State tightened again in the winter of 2020-21; when the general restrictions ended in 2021 and what each ending order kept in force; what carried the quarters in the States that barred local rules; and, for the third quarter of 2021, the national list of what was in force on July 1 and on September 30. Every count on this page is a floor. Every instrument named is in the Library with its text, its dates and its source.
Every day of the six quarters
On every day from March 13, 2020 through September 30, 2021, every employer in the United States operated under orders from appropriate governmental authorities limiting commerce, travel or group meetings due to COVID-19. The federal layer never lapsed and never reopened in the six quarters; it changed shape. Every one of the fifty States and the District issued force-of-law instruments in every quarter. Forty-three governors ordered the public to stay home or non-essential premises to close in March and April 2020. Thirty-nine States imposed statewide masking and exposure-control mandates. Every State re-tightened in the winter of 2020-21. Thirty-one States still had a statewide face-covering and exposure-control requirement on April 5, 2021. The general business restrictions of eight western, five midwestern, nine southern and nine northeastern jurisdictions ran into the second quarter of 2021, and in four States to June 30, 2021 or later. In the third quarter of 2021 every one of the fifty-one jurisdictions had a binding COVID-19 instrument in force: twenty-five of them a State emergency on September 21, 2021; seven of them a universal indoor masking and exposure-control order newly issued between July 30 and August 30, 2021; Hawaii's in force throughout. Beneath the States, the counties and cities of every major metropolitan area issued their own orders, often ahead of and stricter than the State's, and more than thirty of them reinstated indoor masking and exposure-control orders or imposed vaccination-proof conditions of entry between July 17 and September 22, 2021. This analysis states the record by layer, by region and by quarter, with the exhibit identifiers, and it ends with the third-quarter 2021 national inventory that answers the Service's form sentence with the list.
The governmental response to COVID-19 was the densest body of governmental commands on commerce, travel and assembly in the nation's history, and every count of it is a floor. By May 31, 2020, according to the Centers for Disease Control and Prevention, 42 States and territories had issued mandatory stay-at-home orders reaching 2,355 of the nation's 3,233 counties, eight jurisdictions issued advisory orders only and six issued none, "most jurisdictions issued multiple orders," and movement fell in 97.6 percent of counties.1 The Council of State Governments counted 2,065 executive orders issued by governors and State agencies between February 2020 and June 29, 2020 alone; forty-three governors issued stay-at-home or non-essential-closure orders and seven (Arkansas, Iowa, Nebraska, North Dakota, South Dakota, Utah and Wyoming) did not.2 The Department of Health and Human Services' own dataset records 4,218 State and county policy-order entries between March 23, 2020 and August 31, 2021 (1,707 State, 2,511 county, in 56 State and territory jurisdictions and 794 counties in 35 States), with 1,698 start actions between March 23 and June 30, 2020 alone, 642 in the third quarter of 2020, 409 in the fourth and 404 in the first quarter of 2021; its curators stopped coding in the spring of 2021, so the dataset is a floor for 2020 and no measure of 2021.3 The COVID AMP database catalogued nearly 50,000 policy measures worldwide, including more than 20,000 at the United States national and State level, 95 percent of them issued before November 23, 2021, and approximately 8,000 issued by United States counties.4 Thirty-nine States issued statewide face-covering and exposure-control requirements and five reinstated them after expiry; twenty-seven States and the District enacted travel restrictions, and the tri-State quarantine list reached 35 States and territories on October 20, 2020; all fifty States declared emergencies; eight States had school-mask-requirement bans in force at the start of August 2021 and forty-two left masking to local authorities; nineteen States imposed vaccination requirements on some or all State employees from August 2021.5 The Library indexes 11,539 governmental instruments as of its index of September 28, 2026, 9,897 of them graded primary because the issuing authority's own text was read; that figure is the number of instruments The COVID Project retrieved and indexed, and it is not offered as a count of the orders that reached any employer or of the orders issued nationally.6 The position that few orders existed is not a close call on a contested record; it cannot be squared with the Government's own datasets.
The Government's own agencies named the orders
The Bureau of Economic Analysis attributed the 32.9 percent annualized decline in second-quarter 2020 gross domestic product to "the response to COVID-19, as 'stay-at-home' orders issued in March and April were partially lifted in some areas of the country in May and June."7 The Bureau of Labor Statistics wrote that total nonfarm payroll employment "fell by 20.5 million in April, and the unemployment rate rose to 14.7 percent," changes that "reflect the effects of the coronavirus (COVID-19) pandemic and efforts to contain it," and in its 2020 Business Response Survey found that "19 percent of establishments (1.6 million) experienced a government-mandated closure," "52 percent of establishments (4.4 million) told employees not to work" and 36 percent experienced a shortage of supplies or inputs.8 The Comptroller General wrote that "millions have lost their jobs due to stay-at-home orders and business closures aimed at 'flattening the curve'" and that "[w]idespread business closures led to immediate and substantial job losses."9
The Federal Reserve's Beige Books record that "[e]conomic activity contracted sharply and abruptly across all regions in the United States as a result of the COVID-19 pandemic" (April 15, 2020); that "mandated closures of retail establishments remained largely in place during most of the survey period" and that Districts reported "restrictions on home showings in many areas" and "reduced production capacity at meat-processing plants due to closures and social distancing measures" (May 27, 2020); that "mandated restrictions (recent and prospective)" and "more school and plant closings" weighed on activity (December 2, 2020); that "the recent surge in COVID-19 cases and stricter containment measures" and "[r]estrictions on indoor dining" had "hit restaurants hard" (January 13, 2021); that "[s]upply-side disruptions became more widespread, including shortages of materials and labor, delivery delays, and low inventories of many consumer goods" (July 14, 2021); and that the September 2021 deceleration was "largely attributable to a pullback in dining out, travel, and tourism in most Districts, reflecting safety concerns due to the rise of the Delta variant, and, in a few cases, international travel restrictions," with other sectors "constrained by supply disruptions and labor shortages" (September 8, 2021).10 The Congressional Research Service wrote that the labor-market deterioration "corresponded with various advisory or mandated stay-at-home orders," that "lockdown orders were issued in many parts of the country and travel restrictions were put in place," and that "roughly 20 states and the District of Columbia continue to operate under so-called 'stay-at-home' orders" on May 15, 2020.11 Every public school building in the country was closed by March 25, 2020; forty-eight States, four territories, the District and the Department of Defense schools closed for the rest of the 2019-20 year; at their peak the closures reached at least 55.1 million students in 124,000 public and private schools.12 TSA checkpoint throughput fell from 2,353,150 on March 1, 2020 to 113,147 on April 14, 2020, a decline of 95.2 percent; the airlines carried 557 million fewer passengers in 2020 than in 2019.13
The federal layer, by quarter
The federal instruments divide into three groups that this analysis keeps distinct: orders limiting commerce, travel or group meetings in terms, counted as orders under the Suspension Clause; rules and directives that governed the manner of operation of a class of employers or of the federal government as employer, landlord, customer and adjudicator, counted as orders limiting commerce at those premises and in those transactions; and the predicates (the national emergency, the Stafford Act declarations, the public health emergency), which are never counted as orders and are stated only as the record that the federal government treated the emergency as continuing without interruption on every day of the six quarters.14 The Library's federal collection carries every federal instrument by quarter with its exhibit identifier; the narrative follows.
The run-up and the second quarter of 2020
The Secretary of Health and Human Services determined on January 31, 2020 that a public health emergency "exists and has existed since January 27, 2020, nationwide"; Proclamation 9984 suspended entry from China effective February 2, 2020, Proclamation 9992 added Iran on March 2, Proclamation 9993 the Schengen Area effective March 13 and Proclamation 9996 the United Kingdom and Ireland effective March 16.15 On March 13 the President proclaimed the national emergency and determined under the Stafford Act that "an emergency exists nationwide," implemented as an emergency declaration for every State and the District dated that day; the Department of Defense stopped all movement of its personnel effective March 16; CDC issued the No Sail Order on March 14.16 OMB's M-20-13, M-20-15 and M-20-16 moved the executive branch to maximum telework, the last directing that "the Government must immediately adjust operations and services to minimize face-to-face interactions" and that agencies "communicate with their customers to encourage them to delay transactions which are not time-critical."17 The Families First Coronavirus Response Act was enacted March 18; the President delegated Defense Production Act authority over "all health and medical resources" on March 18 (EO 13909), hoarding-prevention authority on March 23 (EO 13910) and further authority on March 27 (EO 13911); HHS designated fifteen categories of respirators, masks, gloves, gowns, ventilators and disinfectants as "scarce materials" on March 25, making their accumulation above reasonable demand a federal crime.18 CDC suspended the introduction of covered persons at the land borders at 11:59 p.m. on March 20, and DHS closed the Canadian and Mexican land borders to all but "essential travel" at the same hour; the State Department cancelled every routine visa appointment in the world as of March 20; USCIS closed its offices to the public from March 18; FHFA, HUD and VA suspended foreclosures and evictions on March 18, and the CARES Act of March 27 made the sixty-day foreclosure moratorium mandatory and added a 120-day eviction moratorium.19 The Supreme Court closed its building on March 12 and postponed its March session; the Judicial Conference found on March 29 that "emergency conditions ... will materially affect the functioning of the federal courts generally"; jury trials were suspended in the Northern District of Illinois (March 12), the Northern District of California (March 16), the District of Maryland (March 20) and the Central District of California, whose courthouses closed to the public on March 23.20 CMS closed nursing homes to "all visitors and non-essential healthcare personnel" on March 13, told hospitals to screen every entrant, recommended on March 18 that non-essential procedures be postponed (a recommendation every State's elective-procedure order then made binding), and issued the § 1135 blanket waivers retroactive to March 1.21
Wages paid after March 12, 2020 belong to the second quarter of 2020, and every instrument in the preceding paragraph belongs to that quarter's proof. From April 1 the FFCRA leave mandate was operational: every employer under 500 employees "shall provide ... paid sick time" to any employee unable to work because "[t]he employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19" or because "the school or place of care" of the employee's child "has been closed," and the implementing rule defined "quarantine or isolation order" to include stay-at-home orders.22 FEMA forbade the export of five categories of PPE without federal allocation from April 7; the President suspended the entry of most new immigrants from April 23 (Proclamation 10014), made meat and poultry processing a DPA priority on April 28 (EO 13917) after the CDC had counted 4,913 infected workers in 115 plants in 19 States, added Brazil to the entry suspensions effective May 26 and suspended the entry of H-1B, H-2B, L and J workers from June 24 (Proclamation 10052); DHS renewed the land-border closure on April 22, May 22 and June 24; M-20-23 (April 20) kept agencies in "Maximum Telework Flexibility" and required screening of "Federal employees, contractors and visitors"; the national parks, Hoover Dam and the Army Corps recreation areas closed; the Northern District of California barred jury trials through September 30; FHFA, HUD and VA extended their moratoria to August 31; CMS-5531-IFC made every nursing home a weekly federal reporter of cases, deaths, PPE and staffing from May 8.23
The third and fourth quarters of 2020
Nothing in the federal travel or workplace layer changed in the third quarter, and the finance and health layers tightened. The proclamations continued and DHS renewed the border closure July 22, August 21 and September 23; M-20-23 remained the governing workplace directive and the federal offices did not reopen; the FFCRA mandate ran the whole quarter, revised September 16; FEMA extended the PPE export rule to December 31 and HHS extended the scarce-materials designation July 30; CDC ordered on September 1, effective September 4, that a landlord "shall not evict any covered person from any residential property" in any jurisdiction without an equal moratorium, on pain of criminal fines up to $500,000 per event; the agencies extended their own moratoria to December 31; CMS-3401-IFC required every nursing home from September 2 to "test residents and facility staff, including individuals providing services under arrangement and volunteers," with staff testing monthly, weekly or twice weekly by county positivity; the CDC's second count of the meat and poultry outbreak reached 16,233 cases in 239 facilities in 23 States.24 In the fourth quarter the No Sail Order gave way on October 30 to the Framework for Conditional Sailing Order, which kept passenger cruising from United States ports closed pending crew testing, simulated voyages and certification; CDC re-issued the Title 42 suspension October 13 under a final rule; DHS renewed the border closure October 22, November 23 and December 22; the winter resurgence re-tightened the federal courts (the Northern District of Illinois suspended all jury trials "until further order" on November 13; the District of New Jersey suspended in-person proceedings November 25 through January 31, 2021); the moratoria were extended to January 31 and February 28, 2021, and Congress extended the CDC eviction moratorium to January 31, 2021; FEMA re-extended the export rule to June 30, 2021; CDC's first pre-departure testing order took effect December 28; Proclamation 10131 carried the immigrant and temporary-worker suspensions to March 31, 2021; the FFCRA mandate expired December 31, 2020.25
The first and second quarters of 2021
The new Administration continued every restriction and added the transport layer. Proclamation 10143 (January 25) continued the European, British, Irish and Brazilian suspensions without interruption and added South Africa; EO 13991 (January 20) required masking and exposure controls and distancing of every person "in Federal buildings or on Federal lands," and M-21-15 (January 24) provided that "[n]o Federal workplace should operate above 25% of normal occupancy standards at any given time during periods of high community prevalence or transmission"; EO 13998 directed airborne-transmission controls, face coverings foremost, in airports, aircraft, trains, vessels, buses and "all forms of public transportation"; CDC's global pre-departure testing order took effect January 26 ("This Order prohibits the introduction into the United States of any aircraft passenger departing from any foreign country unless the passenger" has a negative test or documentation of recovery); the CDC conveyance mask order took effect at 11:59 p.m. on February 1, 2021 "until further notice," and TSA's security directives of January 31 required every transit agency, railroad, bus company, airline and airport from February 1 to give notice that "Federal law requires wearing a mask," to refuse boarding and to remove violators; the Federal Railroad Administration's Emergency Order No. 32 (March 1) imposed the face-covering and exposure-control requirement on every railroad with civil penalties up to $118,826 a day; the Coast Guard's Marine Safety Information Bulletins announced its application to every commercial vessel and sea port; DHS renewed the border closure January 19, February 23 and March 19; CDC extended the eviction moratorium to March 31 and then June 30; FHFA, HUD and VA extended the moratoria to June 30; OSHA launched the National Emphasis Program March 12; Congress re-enacted the Suspension Clause for the third and fourth quarters of 2021 on March 11.26
In the second quarter the United States was adding countries to the entry suspensions, not lifting them: Proclamation 10199 suspended entry from India effective May 4; DHS renewed the border closure April 22, May 24 and June 23; TSA extended the surface directive through September 13, 2021 by SD 1582/84-21-01A, effective May 12 and applied "including those already vaccinated"; CMS re-issued the nursing-home visitation text April 27 (screening of all who enter and exclusion of "those with signs or symptoms or those who have had close contact with someone with COVID-19 infection in the prior 14 days (regardless of the visitor's vaccination status)") and required every nursing home from May 21 to educate, offer and report vaccination for residents and all regular on-site staff and contractors; OSHA's COVID-19 Healthcare Emergency Temporary Standard was published and effective June 21, 2021, "to all settings where any employee provides healthcare services or healthcare support services," with compliance due July 6 and July 21; M-21-25 (June 10) rescinded M-20-23 and the 25 percent ceiling on paper while requiring reentry plans by July 19 and thirty days' notice to employees before any required return; the Northern District of Illinois required vaccination or testing of everyone who works in its courthouses from May 26; FHFA, HUD, VA and USDA extended the moratoria to July 31 and the forbearance windows to September 30; the CFPB's Regulation X rule, dated June 25 and published June 30, took effect August 31; CDC extended its eviction moratorium June 24 to July 31; the FEMA export rule expired June 30, 2021.27
The third quarter of 2021
The federal layer tightened. Every instrument named in the preceding paragraph other than the FEMA export rule was in force on July 1, 2021. Inside the quarter: OSHA revised the National Emphasis Program July 7; HHS extended the scarce-materials designation July 7 to November 15, 2021; the public health emergency was renewed effective July 20 "[a]s a result of the continued consequences of the ... pandemic"; DHS renewed the land-border prohibition July 22, August 23 and September 22; the Safer Federal Workforce Task Force reinstated masking and exposure controls in every federal building for all persons regardless of vaccination status in areas of substantial or high transmission on July 27-29, required that "employees and onsite contractors must sign an attestation" as to their vaccination status and that "[v]isitors must provide information on their vaccination status," and required agency-head approval for any federally hosted "in-person meeting, conference, or event that will be attended by more than 50 participants"; the Northern District of Illinois reimposed masking and exposure controls July 30; CDC replaced the Title 42 order without interruption on August 2; CDC ordered on August 3 that no landlord "shall ... evict any covered person from any residential property in any county or U.S. territory while the county or territory is experiencing substantial or high levels of community transmission," until vacated August 26; on July 30 FHFA, HUD, VA and USDA barred foreclosure-related evictions "[t]hrough September 30, 2021"; TSA issued SD 1582/84-21-01B on August 20, effective September 14, 2021 to January 18, 2022; the CFPB rule barred foreclosure referrals without procedural safeguards from August 31; the District of Arizona re-tightened its own workplace effective September 7 because "the State of Arizona is experiencing another spike of COVID-transmission due to the Delta variant"; the District of New Jersey capped jury selections and required masking and exposure controls "regardless of vaccination status" September 3 and proof of vaccination or a negative test of visitors September 13; the President signed EO 14042 and EO 14043 on September 9, reciting that the public health emergency and the Proclamation 9994 emergency remain in effect; the Northern District of Illinois required vaccination or testing for courtroom participation from September 20; the Task Force issued the contractor guidance September 24 and OMB published its determination that compliance "will improve economy and efficiency by reducing absenteeism and decreasing labor costs for contractors and subcontractors"; Commerce solicited data on "the current semiconductor shortage" September 24; VA extended the forbearance windows September 29.28
A Government that was tightening its own workplace rules, renewing its border prohibitions, replacing its Title 42 order, extending its eviction moratoria and soliciting evidence of a national input shortage in July, August and September 2021 cannot maintain that no orders limiting commerce, travel or group meetings were in effect in that quarter. The position cannot be squared with the Federal Register.
The fifty States: the common chronology
The Kaiser Family Foundation's fifty-one-jurisdiction status files, read at each quarter boundary, fix the national pattern from a source independent of both the Government and the taxpayers. On June 30, 2020, six jurisdictions kept their original stay-at-home orders in place and thirty-nine had eased or lifted them; twelve kept traveler quarantines; forty-six had permitted some or all non-essential premises to reopen and five had not; statewide public masking and exposure-control orders bound twenty jurisdictions and employee masking and exposure-control orders twenty more; and all fifty-one emergency declarations were in force. On October 1, 2020, eighteen jurisdictions were imposing new restrictions, eleven had imposed new gathering limits, bars were newly closed in nine and under new limits in seven, and thirty-three jurisdictions had statewide public masking and exposure-control orders. On January 4, 2021, four jurisdictions had new stay-at-home orders in place, eighteen had new business closures or limits, thirty-four had gathering caps of fifty or fewer (six prohibiting all gatherings and twenty prohibiting more than ten), seven were newly closed to indoor dining and twenty-two under new service limits, bars were closed in sixteen, and forty jurisdictions had statewide public masking and exposure-control orders. On April 5, 2021, twenty-five jurisdictions had non-essential premises open only with limits, twenty-six had gathering caps, twenty-two had restaurant service limits, thirty-one had statewide face-covering and exposure-control requirements and forty-nine had emergency declarations in force. On July 2, 2021, thirty-five emergency declarations were in force, Hawaii still quarantined all travelers and capped gatherings, Kansas and Rhode Island quarantined arrivals from certain States, Hawaii kept gathering limits (KFF also coded a Delaware limit; Delaware's own instruments, Exs. DE-037, DE-038, show that it ended May 21, 2021), and face-covering and exposure-control requirements bound the unvaccinated in eight States and everyone indoors in Hawaii. On September 21, 2021, twenty-five emergency declarations and eleven statewide face-covering and exposure-control requirements were in force and Hawaii was "Imposing New Restrictions."29 The emergency declarations in force on September 21, 2021 were those of Alabama, Arizona, Arkansas, California, Connecticut, the District of Columbia, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Nevada, New Mexico, North Carolina, Oregon, Rhode Island, Texas, Utah, Washington, West Virginia and Wyoming.30
The fifty-one jurisdictions at each quarter boundary, as the Kaiser Family Foundation coded them. Counts are jurisdictions. A dash means the file carries no comparable figure for that date.
| Date | Emergency declarations in force | Stay-at-home orders | Non-essential premises, dining and bars | Gathering caps | Statewide face-covering and exposure-control orders | Traveler quarantines |
|---|
| June 30, 2020 | 51 | 6 original orders still in place; 39 eased or lifted | 46 had permitted some or all non-essential premises to reopen; 5 had not | — | 20 public; 20 more employee-only | 12 |
| Oct. 1, 2020 | — | — | 18 imposing new restrictions; bars newly closed in 9 and under new limits in 7 | 11 with new gathering limits | 33 public | — |
| Jan. 4, 2021 | — | 4 new stay-at-home orders | 18 with new business closures or limits; indoor dining newly closed in 7 and under new service limits in 22; bars closed in 16 | 34 with caps of 50 or fewer (6 prohibiting all gatherings; 20 prohibiting more than 10) | 40 public | — |
| Apr. 5, 2021 | 49 | — | 25 with non-essential premises open only with limits; 22 with restaurant service limits | 26 | 31 | — |
| July 2, 2021 | 35 | — | — | Hawaii (KFF also coded Delaware, whose instruments show its limit ended May 21, 2021) | Unvaccinated persons in 8 States; everyone indoors in Hawaii | Hawaii, all travelers; Kansas and Rhode Island, arrivals from designated States |
| Sept. 21, 2021 | 25 | — | Hawaii coded "Imposing New Restrictions" | — | 11 | — |
The West
Thirteen jurisdictions; thirteen unbroken chains. Every western State but Utah, Wyoming and Idaho's smallest counties ordered the public home in March 2020. Alaska's Health Mandate 011 ordered all persons "to remain at their place of residence," closed every non-listed business to Minimum Basic Operations, prohibited gatherings with non-household members "regardless of the number of people involved" and directed employers to enable remote work from 5:00 p.m. March 28, 2020, and Mandate 010 quarantined every arriving person fourteen days on pain of a $25,000 fine from March 25, 2020 to February 14, 2021. Arizona's stay-home order of March 30 and its mandatory regime under which every business that "serves the public or is an employer shall develop, establish and implement policies" including "[a]llowing for and encouraging teleworking where feasible" ran, as a mandate, from May 16, 2020 to March 25, 2021. California's Executive Order N-33-20 (March 19, 2020) ordered all residents to stay home except for critical infrastructure work, and its tiers, Regional Stay at Home Order and June 11, 2021 order carried binding conditions to June 15, 2021 and masking and exposure-control, mega-event and workplace-standard requirements beyond. Colorado's Stay at Home (March 26) gave way to Safer at Home, the Dial and Level Red, with PHO 20-38's "All employers must implement" duties running through the third quarter of 2021. Hawaii's stay-at-home and work-from-home order of March 25, 2020, its quarantine of every arriving passenger (fourteen days from March 26, 2020; ten days from December 17, 2020; with test and, from July 8, 2021, vaccination exceptions under Safe Travels) to March 25, 2022 (Exs. HI-003, HI-014, HI-018, HI-031, HI-055) and its statewide masking and exposure-control order of November 16, 2020 to March 25, 2022 mean that nothing in Hawaii's general business regime ended before September 30, 2021. Idaho's Order to Self-Isolate (March 25) and its Stages ran to Stage 4 on May 11, 2021, with Boise, Ada County and the health districts issuing masking and exposure-control orders the State did not. Montana's Stay at Home (March 26) and phased directives ran to January 15 and February 12, 2021. Nevada's Directive 002 closed every casino and Directive 013 every non-essential establishment, the Stay at Home directive of April 1 confined residents, and capacity limits ended statewide only on June 1, 2021 under the Gaming Control Board's notice. New Mexico's orders reduced every non-essential in-person workforce "by 100%," capped gatherings at five, closed the State's malls, salons and gyms, imposed from July 1, 2020 a $100 fine for violation of its face-covering requirement, one of the airborne-transmission controls it placed on every indoor public space, re-closed in November 2020 and lifted the last occupancy percentages and gathering caps on July 1, 2021, the first day of the third quarter. Oregon's Executive Order 20-12 (March 23) prohibited office work "whenever telework and work-at-home options are available," a prohibition renewed statewide November 18 to December 2, 2020 and in the "Extreme Risk" tier from December 3, 2020 to May 6, 2021, and Oregon's caps ended June 30, 2021 under Executive Order 21-15. Utah's Directive of March 30 ("Only employees ... who perform work that cannot be done from their home should be exempted from teleworking"), county stay-home orders, statewide masking and exposure-control mandate of November 9, 2020 to April 9, 2021 and Transmission Index restrictions to May 4, 2021 followed the same pattern. Washington's Stay Home - Stay Healthy (March 23), Safe Start and Healthy Washington phases, employee and public masking and exposure-control orders from June 8 and 26, 2020, telework mandate for professional services at 25 percent from November 17, 2020 and Proclamation 20-46 telework mandate for medically vulnerable employees from April 13, 2020 to June 28, 2021 ran with the Phase 3 caps ending June 30, 2021 and Washington Ready keeping employer verification, masking and exposure controls and the school, health-care and eviction instruments alive. Wyoming's Executive Order 2020-2 (March 13, 2020, in force to March 15, 2022) and its four numbered Statewide Public Health Orders, each a misdemeanor to disobey, ran with a statewide masking and exposure-control order from December 9, 2020 to March 15, 2021, the general business restrictions ending March 16, 2021 and the school, child-care and 500-person event continuations running to May 31, 2021 (Exs. WY-050, WY-051, WY-053, WY-054, WY-056, WY-057, WY-058).31
In eight western States (Colorado, Utah, Nevada, California, Oregon, Washington, New Mexico, Hawaii) the general business restrictions were in force on the first day of the second quarter of 2021 (Arizona's had become recommendations on March 25, 2021, Ex. AZ-037), and in four (Oregon, Washington, New Mexico, Hawaii) on the last day of that quarter or into the third, California's having ended June 15, 2021 while its masking and exposure-control, mega-event and K-12 mandates continued (Ex. CA-029). No western State barred stricter local orders before 2021; Arizona preempted local orders by executive order from March 23, 2020 with a local mask carve-out from June 17, 2020 to March 25, 2021, and Montana, Utah and Wyoming constrained local orders by 2021 statutes that are themselves orders in force in the third quarter of 2021 governing what employers and localities could require.32
In the third quarter of 2021 every western State issued or kept in force binding instruments: California's K-12 masking and exposure-control rules (July 12), health-care testing (July 26), face-covering and exposure-control order (July 28), health-care-worker vaccination (August 5), school-worker vaccination (August 11) and State-employee orders; Hawaii's proclamations of August 5 and Executive Order 21-05 of August 10 capping gatherings at ten indoors and twenty-five outdoors and restaurants at fifty percent; Nevada's Directives 047 (universal indoor masking and exposure controls in counties of substantial or high transmission: twelve of seventeen counties, including Clark and Washoe, from July 30 and sixteen of seventeen by August 24, Exs. NV-041, NV-066, NV-067, NV-068), 048 and 050 and its Board of Health regulations; New Mexico's State-employee order (August 2), universal indoor masking and exposure controls (August 20) and hospital, congregate-care and school-worker vaccination orders; Oregon's school masking and exposure controls (August 2), health-care-worker vaccination (August 5 and 25), workplace masking and exposure controls (August 13) and State-employee order; Washington's school orders (July 30), Proclamations 21-14 and 21-14.1 (August 9 and 20), universal indoor masking and exposure controls (August 23), outdoor-event masking and exposure controls (September 13) and Spectator Events rules; Utah's courthouse masking and exposure controls (July 30) and school orders; Alaska's DHSS Public Health Emergency Order and its Addendum No. 1 of September 21 directing hospitals to "Postpone or reschedule medical and surgical procedures" and activating crisis standards of care; Idaho's re-declared emergency (August 17) and crisis standards of care (September 7 and 16); Colorado's Board of Health rule of August 30 requiring a first dose by September 30 in every licensed health facility; Montana's DPHHS Rule I; Arizona's six executive orders to September 29, its court orders and the Navajo Nation's Safer at Home, Orange Status and masking and exposure-control orders; Wyoming's Executive Order 2020-2, its Supreme Court orders and its district and university mandates.33
The Midwest
Twelve States; twelve chains. Eight governors ordered the public home in March 2020 (Illinois March 21, Indiana March 24, Kansas March 30, Michigan March 24, Minnesota March 27, Missouri April 6, Ohio March 23, Wisconsin March 25), and the four that did not (Iowa, Nebraska, North Dakota, South Dakota) closed commerce by category under Proclamations of Disaster Emergency, Directed Health Measures, executive orders and municipal ordinances. Iowa's Proclamations from March 9, 2020 to February 15, 2022, each from April 2, 2020 calling on "all peace officers of the state" to enforce, closed clothing, furniture, jewelry, toy and music stores on March 26 and malls on April 7, and from November 11, 2020 to February 6, 2021 ordered that "[a]ll employers shall evaluate whether any more of their employees can feasibly work remotely and ... shall take steps to enable such employees to work from home." Nebraska's Directed Health Measures, ordered by DHHS under Neb. Rev. Stat. §§ 71-502 and 81-601 county by county and then district by district, ran to May 24, 2021. South Dakota's Executive Order 2020-20 provided that "[e]very South Dakotan shall implement and follow" the Back to Normal Plan to June 30, 2021.34
Michigan's stay-home orders were "construed broadly to prohibit in-person work"; Executive Orders 2020-110 and 2020-160 ordered that "[a]ny work that is capable of being performed remotely ... must be performed remotely" from June 1 to October 2, 2020, a mandate carried into the MIOSHA emergency rules to May 24, 2021. Minnesota's Executive Order 20-20 ordered that "[a]ll workers who can work from home must do so" from March 27, 2020, and its Executive Order 21-01 kept that command in force "[u]ntil April 14, 2021 at 11:59 pm." Illinois' Executive Order 2020-73 (issued November 18, effective November 20, 2020) imposed Tier 3 statewide (one-household gatherings, 25 percent occupancy, offices at 50 percent, indoor dining closed), and its masking and exposure-control mandate ran May 1, 2020 to May 16, 2021 and again from August 30, 2021. Ohio's Director's orders ran a continuous masking, exposure-control, capacity and seated-service regime from March 15, 2020 to June 2, 2021, with a stay-home curfew from November 19, 2020 to February 11, 2021 and a Retail Compliance Unit with a closure sanction from November 16, 2020.35
Every Midwestern State re-tightened between October 8 and November 25, 2020, in forms that repeat across State lines: indoor dining closed outright in Illinois, Michigan, Minnesota and St. Louis County; closing hours or curfews in Iowa, Minnesota, North Dakota, Ohio and the Kansas and Missouri counties; occupancy cut to 25 or 30 percent; gatherings cut to a single household; telework directives renewed or hardened; hospital bed reserves and elective postponements in Iowa, Indiana and Nebraska; new or restored statewide masking and exposure-control mandates in Iowa (November 17), North Dakota (November 14), Kansas (November 25), Ohio and Indiana; and on January 1, 2021 every State except Missouri, South Dakota and Kansas (whose county orders carried the layer) was under a statewide instrument at least as restrictive as its June 30, 2020 regime.36 Binding statewide business limits ran into the second quarter of 2021 in Illinois (to June 11), Indiana (to April 6), Michigan (to June 22), Minnesota (to May 27 and June 30) and Ohio (to June 2), and Iowa's dental mandate ran to June 26 after its seated-service and employer sections ended February 7; in Illinois they returned in the third quarter with the universal indoor masking and exposure-control mandate of August 30, an employer duty from September 3 and vaccination-or-testing mandates for health-care and school personnel.37 No Midwestern State barred local COVID-19 orders during the claimable quarters; every State's general orders preserved stricter local rules in terms, and the 2021 statutes that touched local authority (Missouri's RSMo 67.265, Indiana's SEA 5, Iowa's HF 847, Ohio's SB 22, North Dakota's HB 1323 and HB 1118) regulated duration or the State's own officers, not the existence of local orders.38
In the third quarter of 2021: Illinois' re-issued proclamation and Executive Orders 2021-18, 2021-20 and 2021-22; Indiana's Control Measures of August 1 and hospital directives of September 2; Minnesota's State-workforce vaccination-or-testing order from September 8 and its eviction statute to October 12; Missouri's staffing emergency of August 27; Nebraska's hospital-capacity emergency of August 26 and Lincoln-Lancaster County's masking and exposure-control order; Ohio's K-12 quarantine framework of August 31 and testing orders to July 1, 2022; Michigan's MDHHS residential-care orders that never lapsed; Iowa's statewide courthouse face coverings from August 27 and its HF 847 injunction of September 13; Kansas's KDHE quarantine list and adult-care testing order; South Dakota's judicial emergency; Wisconsin's § 252.03 county orders and Dane County's masking and exposure-control order of August 19; and the county and city orders of Monroe County, Iowa City, Douglas County, the Detroit-metro counties, St. Louis, Kansas City, Jackson County, Dayton and Columbus.39
The South
Seventeen jurisdictions; seventeen unbroken chains of force-of-law instruments from March 2020 through September 30, 2021, and not one without an order limiting commerce, travel or group meetings on the first or last day of any quarter. Alabama's Stay at Home (April 4, 2020) and its Safer at Home orders carried a mandatory employer code ("all employers shall take reasonable steps ... facilitating remote working arrangements; and minimizing employee travel") and 50 percent caps through twelve amendments to 5:00 p.m. April 9, 2021, with a statewide masking and exposure-control mandate from July 16, 2020 to that date. Arkansas never issued a stay-at-home order and never needed one, governing through executive orders that "have the force and effect of law" and Secretary of Health directives whose violation "is a misdemeanor," closing dine-in, gyms, venues, casinos and salons in March 2020 and holding every sector to 66 percent directives, with a statewide masking and exposure-control directive from July 20, 2020 to March 31, 2021. The District's stay-at-home (March 30) and closure orders, its Phase Two caps, telework mandates ("shall take all reasonable steps necessary for employees to work remotely"; "required to telework" December 23, 2020 to January 22, 2021) and masking and exposure-control orders (universal May 16 and July 22, 2020; universal again July 31, 2021) ran the same course. Delaware's shelter in place and travel ban ("All travel ... is prohibited" except Essential Travel), its fourteen-day quarantine of every entrant, its "Teleworking must be maximized" mandate and its universal indoor masking and exposure-control order of December 14, 2020 ran with the general regime ending May 21, 2021 and the emergency July 13, 2021. Florida's Safer at Home of April 3, 2020 and Executive Orders 20-68 through 20-89 ran with the State caps ending September 25, 2020 and the local layer (masking and exposure-control mandates in every large county to May 3, 2021) suspended by Executive Order 21-102 and voided July 1, 2021. Georgia's shelter-in-place of April 3, 2020, which made "teleworking for all possible workers" mandatory, its Public Health State of Emergency and sector orders to July 1, 2021 and its "shall implement" duties kept through June 30, 2021. Kentucky's Healthy at Home and Healthy at Work orders (retail closed, then 33 percent; offices 50 percent; a 33 percent telework mandate November 20 to December 13, 2020; masking and exposure-control order July 10, 2020 to June 11, 2021). Louisiana's stay-at-home order from 5:00 p.m. March 23, 2020 ordering every non-CISA business to "reduce operations to continue with minimum contact," its Phase 2 at 50 percent, its masking and exposure-control mandate July 13, 2020 to April 27, 2021 and again August 4 to October 27, 2021. Maryland's Stay-at-Home of March 30, its closure of every non-essential establishment, its "Convention events are prohibited" order, its general masking and exposure-control order from July 31, 2020 to May 15, 2021 and the residual orders and emergency to July 1 and August 15, 2021. Mississippi's shelter in place of April 3, its Safe Return caps, its statewide masking and exposure-control order August 5 to September 30, 2020 and county orders to March 3, 2021. North Carolina's Stay at Home of March 30 (the listed businesses "directed ... to direct employees to work from home or telework"), its Phase 2 caps, its statewide masking and exposure-control order June 26, 2020 to May 14, 2021 with settings to July 30, 2021, and its Modified Stay at Home curfew of December 2020. Oklahoma's Seventh Amended Executive Order 2020-07 (statewide closure of non-critical businesses, vulnerable persons ordered home, gatherings over ten barred, electives postponed) and the municipal masking and exposure-control ordinances of Tulsa, Norman, Stillwater and Oklahoma City to June 1, 2021. South Carolina's Home or Work order (April 7 to May 3, 2020), its closures and its restaurant, State-building and gathering masking and exposure-control rules to March 5, 2021. Tennessee's Safer at Home (Executive Order 22), its 50-person cap and bar rule to September 30, 2020, its last statewide gathering restriction to January 31, 2021 and the six metropolitan health departments' independent orders throughout. Texas's GA-08 through GA-14 (essential services per CISA Version 2.0 from April 2, 2020), GA-28 (bars closed, 50 percent, outdoor gatherings over 100 barred), the statewide masking and exposure-control order GA-29 from July 3, 2020 to March 10, 2021, GA-32's automatic 50 percent rollback in eighteen trauma service areas, and GA-34 ending operating limits at 12:01 a.m. March 10, 2021. Virginia's Executive Order 55 stay-at-home (March 30), Executive Order 53's ten-patron retail limit ("If any such business cannot adhere to the 10 patron limit with proper social distancing requirements, it must close"), Executive Order 72's midnight curfew, universal masking aged five and older and 30 percent venue caps, amended seven times to May 28, 2021, and the DOLI standard 16VAC25-220 binding every employer from July 27, 2020 through the period. West Virginia's Executive Order 9-20 stay-at-home ordering every non-essential enterprise "to cease all activities ... except for such minimum basic operations," its masking and exposure-control order July 7, 2020 to June 20, 2021 broadened November 14, 2020 to every confined indoor space with business enforcement, and Executive Order 12-21 ending the general regime April 20, 2021 while enumerating what remained.40
Fifteen of seventeen Southern jurisdictions carried mandatory capacity, gathering, masking, exposure-control or telework orders into 2021; nine ended their general regimes only between April 8 and June 11, 2021. Six States preempted local orders by clause, and each preemption clause is itself a gubernatorial order limiting what commerce could do (Arkansas, Florida, Georgia, South Carolina, Tennessee for the 89 counties, Texas from April 2, 2020 with mask preemption from March 10, 2021); Alabama and Mississippi preempted in part; nine jurisdictions did not, and seven affirmatively authorized stricter local orders.41 Every Southern jurisdiction issued or kept in force a binding instrument in the third quarter of 2021, eleven of them new mandates in response to the Delta surge: Louisiana's universal indoor masking and exposure-control mandate (August 4); the District's universal indoor masking and exposure controls (July 31) and three vaccination mandates; Kentucky's State-building masking and exposure controls (July 29), health-facility masking and vaccination-or-testing (August 3) and school and child-care masking and exposure controls (August 10-12); Delaware's Public Health Emergency (July 12), school masking and exposure controls (August 16) and health-care vaccination-or-testing effective September 30; Maryland's MDH vaccination orders (August 5 and 18; September 8) and Judiciary masking and exposure controls; Virginia's K-12 masking and exposure controls (August 12), Executive Directive 18 (September 1) and DOLI amendment (September 8); North Carolina's Executive Order 224 (July 29); Alabama's new State of Emergency (August 13); Arkansas's Executive Order 21-14 (July 29) and the Act 1002 injunction (August 6); Georgia's Executive Order 08.19.21.03 and Guard deployments; Tennessee's Executive Orders 83 and 84 and Supreme Court order; Texas's GA-38 (July 29) with force of law and its Supreme Court's Fortieth Emergency Order; Florida's Executive Order 21-175 (July 30) and Department of Health rules; Mississippi's continued emergency and MSDH directives; South Carolina's Supreme Court orders; Oklahoma's SB 658 and the Cherokee Nation's vaccination mandate; West Virginia's Executive Order 23-21 (July 20).42
The Northeast
Nine States; nine chains, and the region where the general business restrictions ran longest. Connecticut's Executive Order 7H (March 20, 2020) ordered a 100 percent non-essential workforce reduction and telework for every business, its Sector Rules bound every reopened premises from May 20, 2020 to May 20, 2021 with offices at 50 percent, its masking and exposure-control order ran from April 20, 2020 with a $100 fine for which the business was liable from September 15, 2020, and its emergency never ended in the period. Maine's Executive Order 28 stay-home (April 2), Executive Order 34 quarantining every arrival and closing all lodging from April 5 as a Class E crime, and Executive Order 55's command that "until further notice, all businesses and operations shall to the extent practicable continue to have their employees work remotely" ran from May 31, 2020 to June 30, 2021. Massachusetts' Order No. 13 closed every non-essential workplace to "workers, customers and the public" at noon March 24, 2020; its Phase schedule, its 9:30 p.m. closing and nightly alcohol ban November 6, 2020 to January 25, 2021 and its 25 percent caps across offices, retail, restaurants, worship and fitness from December 26, 2020 followed; and Order No. 69 ended the general regime May 29, 2021 while the DPH face-covering and exposure-control order and a fresh public health emergency ran through the third quarter. New Hampshire's Executive Order #17 stay-at-home and closure, its mandatory Universal Business Guidelines with $1,000-per-day penalties, its statewide masking and exposure-control mandate November 20, 2020 to April 16, 2021 and its mandatory guidance to May 7, 2021. New Jersey's Executive Order 107 (March 21, 2020), whose telework mandate ran to June 4, 2021, its Executive Order 108 invalidating every conflicting local order, its Executive Order 122 closing construction and imposing eleven warehouse rules, Executive Order 192's rules on every worksite from November 5, 2020, its indoor-dining prohibition to September 4, 2020 and 10:00 p.m. closure November 12, 2020 to February 5, 2021, and Executive Orders 242 and 243 ending the general regime May 28 and June 4, 2021 while the State of Emergency, the health-care, transit, school and child-care masking and exposure-control rules and the eviction stays ran through the third quarter. New York's PAUSE orders (Executive Orders 202.6, 202.7, 202.8, 202.10) reduced every non-essential in-person workforce to zero from 8:00 p.m. March 22, 2020 and cancelled gatherings of any size; its cluster zones and 10:00 p.m. closing of every licensed premises from November 13, 2020, its curfews to May 31, 2021 and gathering caps to June 15, 2021 followed; and its Subpart 66-3 masking and exposure-control rule, HERO Act, 10 NYCRR 2.60 and 2.61 and eviction stays ran in the third quarter. Pennsylvania's March 19, 2020 order closed "all businesses that are not life sustaining"; its statewide stay-at-home ran from 8:00 p.m. April 1; its Worker Safety Order of April 19 imposed workplace infection-prevention and exposure-control requirements on every open business (occupancy, cleaning and scheduling rules, with universal masking of employees and customers); its telework mandate from July 16, 2020 (Targeted Mitigation Orders) was renewed by its November 23, 2020 order ("Unless impossible, all businesses must conduct their operations remotely") and December 12 prohibition of all indoor dining; the telework mandate ran to April 4, 2021, the mitigation orders to May 31, 2021 and universal masking and exposure controls to June 28, 2021; and Act 21 of 2021, the elective-procedure reduction order to August 23, 2021 and the school and child-care face-covering and exposure-control order of September 7, 2021 ran in the third quarter. Rhode Island's stay-at-home and five-person cap, its quarantine of every non-work arrival, its "employees who are able to work remotely are required to do so" command from November 30, 2020, its Safe Activities regulation with closure power and per-day fines to August 31, 2021, and its emergency renewed through September 30, 2021 with a variant emergency declared August 19. Vermont's Stay Home/Stay Safe (March 25), its suspension of all lodging and fourteen-day quarantine, its "shall reinstitute, to the maximum extent possible ... telecommuting" command from November 14, 2020, its statewide masking and exposure-control mandate August 1, 2020 to June 14, 2021 with a refusal-of-service duty, and its courthouse, State-employee and school-board instruments in the third quarter.43
Every one of the nine States kept its general business restrictions in force on the first day of the second quarter of 2021, seven kept them past May 20, 2021, no State's general restrictions ended before April 16, 2021, and on March 31, 2021 every State in the region still had capacity, gathering or masking and exposure-control orders in force and five (Connecticut, New Jersey, New York, Pennsylvania, Rhode Island) still had a telework mandate, an office cap or both.44 Every State in the region issued at least one new force-of-law instrument between July 1 and September 30, 2021, and six of the nine (Connecticut, Massachusetts, New Jersey, New York, Rhode Island, Vermont) imposed vaccination or vaccination-or-testing mandates on defined workforces inside the quarter, with Maine adding a seventh through its health-care rule.45
The largest metropolitan areas
Beneath the States, the counties and cities of every major metropolitan area issued orders of their own, often before the State and often stricter, and the metropolitan layer is where the third quarter of 2021 is thickest. The first shelter order in the nation was San Francisco's Health Officer Order No. C19-07 of March 16, 2020, issued in seven Bay Area jurisdictions at once, which ordered individuals to shelter, businesses to "cease all activities at facilities," gatherings of "any number" to stop and "all travel" to stop, on pain of a misdemeanor; the Bay Area's eight jurisdictions reimposed universal indoor masking, an airborne-transmission control on every indoor premises, by coordinated health officer orders of August 2, 2021, effective August 3, 2021 (San Francisco, Ex. MET-SFO-010; Marin, Ex. MET-SFO-049; the joint release announcing them, Ex. MET-SFO-071), and San Francisco required proof of vaccination for indoor dining, bars, gyms and entertainment from August 20, 2021.46 Los Angeles County's Safer at Home Order of March 21, 2020 prohibited all gatherings, ordered all persons to remain at home and ordered every non-essential enterprise to "cease in-person operations and close to the public," governing nine million people on the first day of the second quarter of 2020; its Revised Temporary Targeted Safer at Home Order of December 30, 2020 held "Automobile Dealerships, Auto Repair" and retail to 20 percent on the first day of 2021; and its universal indoor masking and exposure-control order of July 15, 2021, effective July 17, was the first Delta-wave reinstatement in the country and never lapsed before September 30, 2021.47 New York City's Emergency Executive Orders 98, 100 and 102 (March 12-20, 2020) closed the City ahead of the State; its Emergency Executive Order 225 of August 16, 2021 ("Key to NYC") forbade every indoor restaurant, bar, gym, theater, museum, arena, convention center and event venue in the five boroughs to admit any patron, employee or contractor without proof of vaccination from August 17, 2021, on pain of $1,000 to $5,000 fines, with enforcement from September 13, and the Department of Health's vaccination orders of July 21 through September 15, 2021 followed.48 Chicago's Public Health Orders 2020-1 and 2020-2 of March 2020 closed the City under the Municipal Code; its Emergency Travel Order of July 6, 2020 quarantined arrivals from a list of States that grew weekly and ran, tiered, until it became advisory on June 29, 2021 (Ex. MET-CHI-019); and CDPH Order 2020-9 (Eighth Amended, June 11, 2021), in force on every day of the third quarter of 2021, bound "any for-profit, non-profit, or educational entity, regardless of the nature of the service, the function it performs, or its corporate or entity structure," to which the City added universal indoor masking on August 20, 2021 and Cook County on August 23.49
Dallas County's Stay Home Stay Safe order of March 22, 2020, Tarrant County's, Fort Worth's and Denton County's orders of March 24, 2020 reached every non-essential establishment, gathering, worship service and elective medical, surgical and dental procedure with a $1,000/180-day penalty clause; Dallas County's May 4, 2020 order converted the State's "recommended" protocols into mandatory rules and confined reopened businesses to 25 percent occupancy and Retail-to-Go; and Dallas County's face-mask and exposure-control orders of August 11-16, 2021, issued against GA-38 and litigated inside the quarter, bound the metro's schools, businesses and county buildings.50 Harris County's Stay Home, Work Safe Order of March 24, 2020, adopted by the City of Houston, and its Health and Safety Policy and face-covering and exposure-control order of June 19, 2020, which required every customer-facing commercial entity in the nation's third most populous county to write, post and implement a health and safety policy under threat of fines from June 22, 2020 to March 10, 2021, were followed by fourteen months of monthly foreclosure and judicial-sale cancellations and the Local Health Authority's school orders of July 24, 2020 and August 12, 2021.51 Montgomery County, Maryland kept the stay-at-home order and every closure in force for five weeks after the State lifted them and lifted the stay-at-home only "effective 5:00 p.m., Friday June 19, 2020," suspended indoor dining and capped indoor gatherings at ten in December 2020 while the State permitted more, and reinstated indoor face-covering requirements, airborne-transmission controls on every indoor public premises, on August 7, 2021 with Prince George's County on August 5; the Fairfax and Alexandria courts reinstated masking and exposure-control orders August 2 and 4, 2021.52 Philadelphia's Order No. 2 of March 22, 2020, adopted as a Board of Health regulation, closed non-essential premises, banned every gathering outside a household and ordered every resident to remain home a day before the Governor; its Full Reopening Order of June 15, 2021 bound "[a]ll businesses that are operating within the City of Philadelphia" on every day of the third quarter of 2021 to masking and exposure controls in health-care, congregate, school and transit settings, contact tracing and worker isolation; and from August 12, 2021 the Board required masking and exposure controls in any indoor setting and at large outdoor events, from August 16 the vaccination of health-care workers and higher-education staff, and from September 1 and 14 the vaccination and masking of City employees and contractors.53 The Fulton County Board of Health's Administrative Order 20.03.31 commanded every resident of Georgia's largest county to stay at home and prohibited every gathering of any number on pain of a misdemeanor "until rescinded," and Atlanta's Executive Orders 2020-21 and 2020-22 ordered every business to "cease non-essential operations at physical locations" from 12:00 a.m. March 24, 2020, three days before the Governor acted; Atlanta's Executive Order of July 28, 2021 required masking and exposure controls indoors in all public places (Ex. MET-ATL-063), and Savannah reinstated its indoor face-covering requirement, an airborne-transmission control on every indoor public premises, from July 26, 2021 (Ex. MET-ATL-016) and, by Emergency Order No. 29 of August 24, 2021, added gathering, venue and permit conditions to September 23, 2021 (Ex. MET-ATL-017).54
Maricopa County's face-covering regulations of June 19-20, 2020, an airborne-transmission control on every enclosed workplace, bound every city, every enclosed public premises and every employer's public-facing staff in a county of 4.5 million people "until further notice of repeal or revision," Tucson's proclamation chain closed every non-"Essential Function" business three days before the State, and the Maricopa County Superior Court's orders kept screening, distancing and masking and exposure controls after building-access restrictions ended July 19, 2021.55 The Boston Public Health Commission's declaration of March 15, 2020 ran "until rescinded," its Supplemental Restrictions of December 14, 2020 rolled the City back, and its Order Requiring Face Coverings of August 20, 2021, effective 8:00 a.m. August 27, 2021, reached every employee and customer of every indoor premises open to the public in the Commonwealth's largest city, with Cambridge, Somerville, Salem and Provincetown issuing their own.56 Riverside County's order of April 4, 2020, issued jointly by the Health Officer and the County Executive Officer and backed by criminal and $1,000-per-day civil penalties, prohibited every gathering "regardless of venue or size," placed every person "including Essential Workers" under its face-covering requirement, an airborne-transmission control on every premises in the county, closed bars, dining rooms and gyms, ordered every open business to telecommute wherever possible and directed the postponement of elective surgery; San Bernardino County's order of April 7, 2020 did the same; and both counties' isolation, quarantine, court and licensed-facility orders ran through the third quarter of 2021.57 Detroit's Emergency Order for Control of Epidemic of October 9, 2020, a twenty-five-page health-officer order enforceable as a misdemeanor, reached every function of every business open to the public in Detroit through the second quarter of 2021 (bars closed indoors; restaurants at 50 percent; retail at 25 percent; casinos at 15 percent; construction, manufacturing, office, laboratory and health-care rules; remote work for laboratories), with Oakland and Wayne Counties' orders beside it and the metro's school districts under masking and exposure-control rules from August 2021.58 King County's Local Health Officer Order of March 16, 2020, Seattle's civil emergency and eviction moratoria (to September 30, 2021 and then January 15, 2022), King County's Outdoor and Indoor Masking Orders of September 2, 2021 (effective September 7) and its Verification of Vaccination Order, issued September 16, 2021 for compliance from October 25, 2021, which conditioned entry to every indoor restaurant, bar, gym, theater, museum, arena, exhibition hall and convention center and every outdoor event of 500 or more on proof of vaccination or a fresh negative test for six months with no medical or religious exemption, are the Pacific Northwest's answer to the Service's form sentence quoted at the end of this page.59
Minneapolis' Emergency Regulation 2020-12 limited commerce in every indoor space of public accommodation with an express duty on "[a]ll employers" from May 26, 2020 to June 1, 2021, its Emergency Regulation 2020-17 ordered bar areas closed from August 1, 2020 and outlasted the Governor's, and Saint Paul, Ramsey County and Hennepin County imposed facility face-covering and exposure-control requirements from August 3, 2021.60 San Diego County's order effective April 9, 2020 provided that "[a]ll persons are to remain in their homes," that every non-essential enterprise "shall be and remain closed for the duration of this Order," and that every open listed business must post and implement a written protocol or "immediately close"; its Limited Order of June 15, 2021 kept the Isolation and Quarantine Orders in force and directed every governmental entity to continue enforcing State and local COVID-19 law; the County enforced its orders by more than 300 cease-and-desist and closure orders.61 Hillsborough County's Safer-At-Home Order (effective 10:00 p.m. March 27, 2020) directed "all residents ... to stay at home as much as possible twenty-four hours a day, seven days a week," Pinellas County's Resolutions 20-20 and 20-23 ordered every non-essential retail business to "[c]lose storefront operations," and the metro's face-covering and exposure-control regime ran from June 2020 to May 3, 2021, with the local emergencies, Tampa's Lift Up Local regime and employee vaccination directive and the courts' orders continuing through September 30, 2021.62 Denver's Stay at Home order of March 23, 2020 ("all non-essential businesses ... required to cease all activities"; "[a]ll public and private gatherings of any number of people ... are prohibited"; "[a]ll travel ... is prohibited") ran twelve days longer than the State's; the four local dial orders of April 9-16, 2021 kept capacity restrictions as local law to May 16 and beyond; Denver required vaccination of its workers and contractors from August 2, 2021 and imposed school masking, and the Tri-County, Jefferson and Boulder County health departments kept their dial orders with re-imposition mechanisms to August 15, September 15 and August 16, 2021.63 Baltimore City's capacity orders ran to May 15, 2021, its Health Commissioner's orders to July 1, 2021, and its Updated Directive and Order for Face Coverings of August 10, 2021 (effective August 9) reached every indoor business, every workplace "where interaction with others is likely, including ... shared areas of commercial offices," every restaurant kitchen, every physician's and dentist's office and every school in Maryland's largest city, with misdemeanor penalties, to March 1, 2022.64 St. Louis County's Safer At Home Order of November 12, 2020 (effective November 17) was a second stay-at-residence order in the winter of 2020-21 ("You must not leave or be outside of your Residence except for specific purposes"; "Restaurants must cease all indoor service"; "All Businesses that provide goods or services to the public are limited to twenty-five percent (25%)"), with percentage caps to May 3, 2021; the City and County reinstated indoor masking and exposure controls July 26, 2021, and the County's order survived the Council's invocation of RSMo 67.265 in litigation inside the quarter; Kansas City and Jackson County reinstated masking and exposure controls August 2 and 9, 2021.65
Orange County, Florida's Emergency Executive Order 2020-04 of March 24, 2020 ordered every individual to stay home and every non-essential retail and commercial business closed ten days ahead of the State, named the theme parks, theaters and venues on which the metro's economy runs and fixed criminal penalties, and its countywide face-covering and exposure-control mandate on "every person working, living, visiting, or doing business in Orange County" ran from June 20, 2020 to May 3, 2021 (Exs. MET-ORL-008, MET-ORL-009, MET-ORL-010); the county emergency was re-declared July 28, 2021.66 Mecklenburg County's Stay at Home Order of March 24, 2020, signed by eight elected officials, ordered that "Non-essential business and operations must cease," banned gatherings of more than ten and made violation a Class 2 misdemeanor four days before Executive Order 121; Wake County's proclamation of March 26 prohibited "[a]ll public and private gatherings of any number of people" outside a household; and from August 9 to 31, 2021 Durham, Orange, Raleigh, Wake, Cary, Charlotte and all of Mecklenburg reinstated indoor face coverings.67 San Antonio's Emergency Order No. 5 and Bexar County's NW-03 (March 23, 2020) ordered that "all businesses operating within San Antonio except Exempted Businesses are required to stop operations and close," Bexar's NW-10 of June 17, 2020 required every commercial entity serving the public to "develop and implement a health and safety policy" requiring face coverings, and the requirement that every such entity "post and implement" a policy survived GA-34 through the third quarter of 2021 alongside the August 2021 jury-service suspension, school masking and exposure-control directive and NW-21.68
The pattern holds in the next tier of metropolitan areas. Sacramento County's stay-at-home orders of March 19 and April 7, 2020 and its Health Officer Order of July 29, 2021, effective July 30, required face coverings "regardless of vaccination status ... in all indoor public settings, venues, gatherings, and workplaces," every business to enforce it on patrons and post signage, and declared that it "takes precedence over the more permissive ETS regarding employee face coverings," with Yolo County's parallel order. Allegheny County's Control Measure Orders of July 2, 8 and 17, 2020, by which a county health officer acting under statutes independent of the Governor closed every bar, restaurant, nightclub, tavern and casino in a county of 1.2 million people to in-person operation for a week, then banned indoor dining countywide and capped events at 25 indoors, ran beside the Fifth Judicial District's judicial emergency, court masking and exposure-control orders from August 10, 2021, landlord-tenant procedures to October 31, 2021 and Pittsburgh's Chapter 626B from July 27, 2021. Clark County's Code 3.04.065 (April 21, 2020) made every emergency directive of the Governor, the Board, the Sheriff or the County Manager punishable by loss of a business license, a $1,000-per-day administrative penalty and a misdemeanor in all six quarters, and the Eighth Judicial District's Administrative Order 21-05 of July 19, 2021 ordered universal face coverings and remote appearances. Cincinnati's Emergency Ordinance 0246-2020 (July 9, 2020 to May 17, 2021) and the Hamilton County courts' Joint Amended Administrative Order of August 11, 2021 mandated masking and exposure controls and vaccination-status-based entry to February 24, 2022. Jackson County's Stay at Home Order of March 22, 2020 directed "all businesses and governmental agencies to cease non-essential operations at physical locations" under a class A misdemeanor penalty. Columbus's Mayor's Executive Order 2021-01 of September 10, 2021, codified by Ordinance 2388-2021 effective September 14, reached every place of business, every transit conveyance, and manufacturing, construction and agricultural workplaces by NAICS code with civil penalties. Marion County's Public Health Order 31-2020 (September 28, 2020) held every restaurant, bar and nightclub to 50 percent indoor capacity and table service and every workplace to six feet on the weekend the Governor took Indiana to Stage 5 with no limits, and its orders ran to July 1, 2021 with Monroe County's masking and exposure-control order from August 5, 2021. Cleveland's Ordinance 556-2020 (July 15, 2020), a municipal legislature's own text, ordered every person to mask in every indoor non-residential location and every restaurant, bar and banquet operator to seat every patron under $1,000 and $3,000 civil penalties and summary nuisance abatement, and Cuyahoga County's building orders were in force every day of the third quarter of 2021. Shelby County's Health Directive No. 16, Safer at Home (December 26, 2020 to January 22, 2021), was a second full closure order requiring "[a]ll businesses except those listed below in Paragraph 9 ... to close their physical locations to the public"; Nashville's force-of-law crowd limits and capacity rules ran beside it; and Shelby County's re-tightened orders of August 2021 came with the injunctions of G.S. v. Lee and R.K. v. Lee against Executive Order 84 inside the quarter. Milwaukee's Stay-At-Home Order of March 25, 2020 under Wis. Stat. § 252.03 was a second, independent legal source for the Milwaukee shutdown that survived the Wisconsin Supreme Court's decision in Wisconsin Legislature v. Palm of May 13, 2020 (Ex. WI-007) untouched; Dane County's Emergency Order #2 re-imposed the State's regime locally the day after Palm; and Dane County's masking and exposure-control order followed on August 19, 2021. New Orleans' Mayoral Proclamation of March 16, 2020 under La. R.S. 29:727 cancelled every gathering, closed every bar, gym, mall, venue and reception facility, reduced every restaurant to take-out and ordered every resident to stay home before the State acted; its guidelines of May 28, 2021 kept gathering caps of 250 indoors and mandatory safety requirements for every business; its indoor masking and exposure-control order was announced July 30, 2021 and effective 6:00 a.m. July 31, 2021; and its vaccination-or-test entry rule took effect August 16, 2021. Louisville's Ordinance 057-2020 with Ordinance 085-2021, a legislative finding of June 24, 2021 that the restaurant industry "is still recovering from the impacts of the COVID-19 restrictions" and "needs continued flexibility" into 2022, and Lexington's five successive ordinances to October 31, 2021 ran with the two school districts' masking, quarantine and exposure-control rules from August 2021. Salt Lake County's Public Health Order 2020-03, "Stay Safe, Stay Home," prohibited "[a]ll public and private gatherings of any number of people," closed every gym, theater, pool, museum, salon and spa by name and every dining room, and barred landlords from entering their premises under misdemeanor penalties with "each violation ... a separate offense," with Salt Lake City's facility masking and exposure-control orders and the SB 195 school orders in the third quarter of 2021. Honolulu's Second Stay At Home / Work From Home Order of August 25 and September 8, 2020 ("All businesses with a facility in the City, except Essential Businesses ..., are required to cease all activities within such facilities, except Minimum Basic Operations"; "Indoor and outdoor social gatherings of any type and any number of people are prohibited") was a full stay-at-home order in the third quarter of 2020, five months after the first, followed by Safe Access O'ahu on September 13, 2021 and Proclamation and Emergency Order No. 2021-13 of September 17, 2021, whose Exhibit B named the businesses it capped, in force on September 30, 2021.69 The Austin and Travis County, Miami-Dade, Broward and Palm Beach County, and Portland and Multnomah County instruments are described on their Library pages by official title and date.
The winter 2020-21 re-tightening
Every State re-tightened between October 6 and December 26, 2020, and the pattern is uniform across regions. A second closure of indoor dining and indoor recreation: Washington November 18; Oregon November 18; Illinois November 20; Michigan November 18; Minnesota November 20; Pennsylvania December 12; New Mexico November 16; California's Regional Stay at Home from December 3; Kentucky November 20; Colorado's Level Red from November 20; New York City December 14; Anchorage, Philadelphia, Boston, Montgomery County and St. Louis County by local order. Early closing or curfews on food, drink and recreation: Massachusetts 9:30 p.m.; New York 10 p.m.; New Jersey 10 p.m.; Rhode Island 10 p.m.; Vermont 10 p.m.; Connecticut mandatory closing times; Maine 9 p.m.; Ohio 10 p.m. to 5 a.m. stay-home curfew; Virginia midnight to 5 a.m.; Maryland 10 p.m.; North Carolina's Modified Stay at Home 10 p.m. to 5 a.m.; Delaware, Kentucky, Louisiana, Arkansas and Oklahoma 10 or 11 p.m. Occupancy rolled back to 25 percent or less in Massachusetts, New Jersey, Illinois, Nebraska, North Dakota and Wisconsin, Colorado's offices at 10 percent, Washington's professional services at 25 percent and the District's 25 percent. Gatherings cut to ten or a single household in more than thirty States. Telework re-imposed or made mandatory in terms: Pennsylvania, "Unless impossible, all businesses must conduct their operations remotely"; Rhode Island, "employees who are able to work remotely are required to do so"; Vermont, "shall reinstitute, to the maximum extent possible ... telecommuting"; Washington, "required to mandate that employees work from home when possible"; Oregon, "Work in offices is prohibited whenever telework ... options are available"; Kentucky's 33 percent mandate; New Mexico's 100 percent reduction; the District's "required to telework"; Iowa's "shall take steps to enable such employees to work from home." Universal or strengthened masking and exposure-control orders: Hawaii November 16; Utah November 9; Montana November 20; Wyoming December 9; Iowa November 17; North Dakota November 14; Kansas November 25; New Hampshire November 20; Pennsylvania November 18, "irrespective of physical distance"; California November 17, "whenever outside their home"; Virginia aged five and older; West Virginia's every confined indoor space; Delaware universal indoor December 14. Travel quarantines expanded in Connecticut, New Hampshire, Pennsylvania, Vermont, New York's test-out regime, New Jersey's advisory and Maryland. Hospital bed reserves and elective postponements: Texas GA-32; Pennsylvania's 50 percent elective-reduction order of November 23; California's Hospital Surge Order; Nebraska, Iowa, Indiana, Mississippi, New Mexico, Massachusetts, Utah, Washington and Maryland. Court suspensions in every region.70 Every element was in force on January 1, 2021, and the relaxations of the first quarter of 2021 were partial and late.
The 2021 transition
The general business restrictions ended on dates the instruments themselves fixed, and the dates run from September 25, 2020 (Florida's State caps) to July 1, 2021 (New Mexico) and never before September 30, 2021 (Hawaii). The table sets them out by month, with the dates the ending instruments fixed for what continued.71
When each jurisdiction's general business restrictions ended, and what its instruments carried past that date.
| Month | Jurisdiction | General restrictions ended | What continued, and to when |
|---|
| 2020 | South Dakota | Apr. 28, 2020 | Executive Order 2020-20's Back to Normal Plan to June 30, 2021 |
| 2020 | Wisconsin | May 13, 2020 (by court) | Masking and exposure-control orders to Mar. 31, 2021 |
| 2020 | Alaska | May 22, 2020 | Traveler quarantine to Feb. 14, 2021 |
| 2020 | North Dakota | May 22, 2020 | Caps and masking and exposure-control orders of Nov. 2020 to Jan. 18, 2021 |
| 2020 | Kansas | May 26, 2020 | County orders carried the layer; statewide masking and exposure-control order Nov. 25, 2020 |
| 2020 | Iowa | June 12, 2020 (caps) | Winter measures to Feb. 7, 2021; dental mandate to June 26, 2021 |
| 2020 | Missouri | June 15, 2020 | County orders carried the layer |
| 2020 | Florida | Sept. 25, 2020 (State caps) | Local orders to May 3, 2021 |
| 2020 | Tennessee | Sept. 30, 2020 (the 89 counties) | Statewide gathering cap to Jan. 31, 2021; county mask authority to Apr. 28, 2021 |
| Jan. 2021 | Montana | Jan. 15, 2021 (caps) | Masking and exposure-control orders to Feb. 12, 2021 |
| Feb. 2021 | Idaho | Feb. 2, 2021 | Stages to Stage 4 on May 11, 2021 |
| Feb. 2021 | Arkansas | Feb. 26, 2021 | Masking and exposure-control directive to Mar. 31, 2021 |
| Mar. 2021 | South Carolina | Mar. 1 and 5, 2021 | — |
| Mar. 2021 | Mississippi | Mar. 3, 2021 | County orders to Mar. 3, 2021; emergency continued |
| Mar. 2021 | Texas | Mar. 10, 2021 | Supreme Court emergency orders, GA-38 and the workplace and health-care layer |
| Mar. 2021 | Oklahoma | Mar. 12, 2021 | Municipal masking ordinances to June 1, 2021 |
| Mar. 2021 | Maryland | Mar. 12, 2021 (capacity) | Venues and masking and exposure-control orders to May 15, 2021; residual orders to July 1, 2021; emergency to Aug. 15, 2021 |
| Mar. 2021 | Wyoming | Mar. 16, 2021 | School, child-care and 500-person event continuations to May 31, 2021; Executive Order 2020-2 to Mar. 15, 2022 |
| Mar. 2021 | Arizona | Mar. 25, 2021 | Executive Order 2021-16 with its Sept. 29, 2021 sunset |
| Apr. 2021 | Indiana | Apr. 6, 2021 | — |
| Apr. 2021 | Georgia | Apr. 8, 2021 (caps) | Public-health emergency and sector orders to July 1, 2021 |
| Apr. 2021 | Alabama | Apr. 9, 2021 | Last order May 31, 2021 |
| Apr. 2021 | Utah | Apr. 10, 2021 (masking and exposure-control orders) | All others to May 4, 2021 |
| Apr. 2021 | Colorado | Apr. 16, 2021 | PHO 20-38, "All employers must implement," through the third quarter of 2021 |
| Apr. 2021 | New Hampshire | Apr. 16, 2021 (masking and exposure-control orders) | Mandatory guidance to May 7, 2021 |
| Apr. 2021 | West Virginia | Apr. 20, 2021 | Masking and exposure-control order to June 20, 2021 |
| Apr. 2021 | Nevada | Apr. 30, 2021 (distancing) | Capacity to June 1, 2021; Directive 044 § 7 Baseline Statewide Mitigation Measures |
| May 2021 | North Carolina | May 14, 2021 | Settings to July 30, 2021 |
| May 2021 | New York | May 19, 2021 (caps) | Curfews to May 31; gatherings to June 15; emergency to June 24, 2021 |
| May 2021 | Connecticut | May 20, 2021 | Emergency never ended in the period |
| May 2021 | Delaware | May 21, 2021 | Emergency to July 13, 2021 |
| May 2021 | District of Columbia | May 21, 2021 | — |
| May 2021 | Rhode Island | May 21, 2021 | Masking and exposure-control orders to July 6, 2021; Safe Activities regulation to Aug. 31, 2021 |
| May 2021 | Maine | May 24, 2021 | Telework command to June 30, 2021 |
| May 2021 | Nebraska | May 24, 2021 | — |
| May 2021 | Louisiana | May 26, 2021 | Masking and exposure-control mandate again Aug. 4 to Oct. 27, 2021 |
| May 2021 | Minnesota | May 27, 2021 (caps) | Plan to June 30; emergency to July 1, 2021 |
| May 2021 | Virginia | May 28, 2021 | Executive Order 79 keeping K-12 masking and exposure controls |
| May 2021 | New Jersey | May 28, 2021 | Telework to June 4, 2021; Executive Orders 242 and 243 carrying Executive Order 192's requirements |
| May 2021 | Massachusetts | May 29, 2021 | Emergency to June 15, 2021; DPH face-covering and exposure-control order and the May 28 public health emergency |
| May 2021 | Pennsylvania | May 31, 2021 | Masking and exposure-control orders to June 28, 2021; Act 21 to Sept. 30, 2021 |
| June 2021 | Ohio | June 2, 2021 | — |
| June 2021 | Illinois | June 11, 2021 | Executive Order 2021-12 keeping the proclamation, the health-care and congregate masking and exposure controls, the school regime and the eviction moratorium |
| June 2021 | Kentucky | June 11, 2021 | Executive Order 2021-386 keeping the emergency "in place" and masking and exposure controls in transit, health care and long-term care to Sept. 7, 2021 |
| June 2021 | Vermont | June 14, 2021 | — |
| June 2021 | California | June 15, 2021 | The June 11, 2021 order with its three mandates (masking and exposure control, mega-events, K-12) |
| June 2021 | Michigan | June 22, 2021 | — |
| June 2021 | Washington | June 30, 2021 | Washington Ready's continuing requirements |
| June 2021 | Oregon | June 30, 2021 | Executive Order 21-15's list of what it did not rescind |
| July 2021 | New Mexico | July 1, 2021 | The June 30, 2021 order, paragraphs 1-4 and 6 |
| July 2021 | Georgia | July 1, 2021 (public-health emergency and sector orders) | — |
| July 2021 | Maryland | July 1, 2021 (residual orders) | Order 21-06-15-01 with fourteen grace-period orders to Aug. 15, 2021 |
| Not in period | Hawaii | Not before Dec. 1, 2021 (caps) | Masking and exposure-control orders and Safe Travels to Mar. 25, 2022 |
In every State the ending instrument kept named instruments alive, and the State pages quote each for what it preserved: Arizona's Executive Order 2021-16 with its September 29, 2021 sunset; Colorado's PHO 20-38 ("All employers must implement"); Nevada's Directive 044 § 7 Baseline Statewide Mitigation Measures; California's June 11, 2021 order with its three mandates; Oregon's Executive Order 21-15 with its list of what it did not rescind; Washington Ready's continuing requirements; New Mexico's June 30, 2021 order, paragraphs 1-4 and 6; Illinois' Executive Order 2021-12 keeping the proclamation, the health-care and congregate masking and exposure controls, the school regime and the eviction moratorium; Massachusetts' Order No. 69 beside the DPH face-covering and exposure-control order and the May 28 public health emergency; New Jersey's Executive Orders 242 and 243 carrying Executive Order 192's requirements; Pennsylvania's Act 21 to September 30, 2021; Maryland's Order 21-06-15-01 with fourteen grace-period orders to August 15; Kentucky's Executive Order 2021-386 keeping the emergency "in place" and masking and exposure controls in transit, health care and long-term care to September 7, 2021; Virginia's Executive Order 79 keeping K-12 masking and exposure controls; West Virginia's Executive Order 12-21 enumerating what remained.72 Two consequences follow for the third quarter of 2021. The restoration period described in the continuing-suspension analysis runs, in most of the country, from a date inside the second quarter of 2021 and in New Mexico and Hawaii from July 1, 2021 or later. And the "end of general restrictions" was in every State the substitution of one set of orders for another, never the absence of orders.
The preemption States and what carried their 2021 quarters
Thirteen jurisdictions barred conflicting local orders for some or all of the period (Arizona from March 23, 2020; Arkansas; Florida in four steps from April 1, 2020 to July 1, 2021; Georgia from April 3, 2020; South Carolina from March 23, 2020; Tennessee for the 89 counties from April 27, 2020; Texas from April 2, 2020 with mask preemption from March 10, 2021; Alabama and Mississippi in part; Connecticut, New Jersey and New York by their emergency orders; Massachusetts in part), and eight States constrained local orders by 2021 statute (Montana's HB 121, HB 257 and HB 702; Utah's HB 294, SB 195 and HB 1007; Wyoming's HEA 93; Iowa's HF 847; Missouri's RSMo 67.265; Indiana's SEA 5; Ohio's SB 22; North Dakota's HB 1323 and HB 1118).73 Preemption is itself an order: each clause is a gubernatorial or legislative instrument limiting what commerce could do and what conditions employers could impose on their customers and workers, and several were enjoined in whole or in part inside the third quarter of 2021 (Arkansas's Act 1002 from August 6; Tennessee's Executive Order 84 in Shelby, Knox and Williamson Counties; Oklahoma's SB 658 mask provisions from September 1; South Carolina's Proviso 1.108 from September 28; Texas's GA-38 in the Travis County litigation and the Supreme Court of Texas's stays; Iowa's HF 847 school provision from September 13).74 What carried the 2021 quarters in the preemption States was the layer the preemption did not reach: the State workplace and health-care instruments (Texas's Supreme Court emergency orders through the Forty-Third, GA-38 with force of law, SB 968, the TEA protocols and the HHSC guidance; Florida's ss. 381.00316 and 252.38(4), Executive Order 21-175 and the Department of Health's school rules; Georgia's Economic Recovery State of Emergency, Executive Order 08.19.21.03, Guard deployments and OCI directives; Arizona's six executive orders to September 29, 2021 and its court orders; Tennessee's Executive Orders 83 and 84 and Supreme Court order; South Carolina's Provisos and trial-court orders; Arkansas's Executive Order 21-14 and Acts 977 and 1030), the courts, the tribal nations within those States (the Navajo Nation in Arizona; the Cherokee Nation in Oklahoma), the school districts that acted against the preemption and kept their orders under injunction (Houston, Dallas, Austin, San Antonio and Fort Worth; Shelby, Williamson and Franklin Counties; the Florida boards), and the federal layer that no State could preempt.75
The third quarter of 2021: the national inventory
The Service's letters deciding claims for the third quarter of 2021 carry one sentence on the suspension prong. It is a statement of fact about the public record of the United States, and it is measured against that record.76
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.
On July 1, 2021 and on September 30, 2021 the federal government, every one of the fifty-one State-level jurisdictions and the health authorities of every major metropolitan area had binding COVID-19 instruments in force. The Library carries them row by row for the third quarter of 2021; the four paragraphs that follow state the inventory by layer. The sentence describes a quarter that did not occur.
The federal layer on July 1 and September 30, 2021
On July 1, 2021 and on September 30, 2021 the federal government had in force orders limiting travel (Proclamations 9984, 9992, 10143 and 10199; the DHS land-border prohibitions; the Title 42 suspension; the inbound-testing order; the CDC conveyance mask order and the TSA directives; the FRA's Emergency Order No. 32, with the Coast Guard's MSIB 02-21 announcing the CDC order's application at the ports; the Conditional Sailing Order), orders governing the manner of operation of every healthcare setting and every certified nursing home (the Healthcare Emergency Temporary Standard with DIR 2021-02 and 2021-03; 42 C.F.R. § 483.80(g), (h) and (d)(3); QSO-20-39-NH as revised April 27, 2021; QSO-20-38-NH as revised September 10, 2021), orders limiting the federal government's own commerce as employer, landlord, customer and court (EO 13991 with M-21-15's non-occupancy provisions and M-21-25; the Task Force rules of July 29, 2021 and the Certification of Vaccination form; the DoD travel restrictions and installation orders; EO 14042 and EO 14043 and the OMB determination; the orders of the Central District of California, the Northern District of Illinois, the District of New Jersey, the District of Maryland, the Northern District of California, the District of Arizona and the Tax Court), orders on the supply of goods (the DPA executive orders; the scarce-materials designation to November 15, 2021; the Federal Maritime Commission's Fact Finding 29 order of investigation and its supplemental order, Exs. AGY-USCG-PORTS-045, AGY-USCG-PORTS-050), and orders suspending the foreclosure function of every federally connected servicer to July 31 and the eviction function to September 30, 2021, with the CFPB's Regulation X safeguards from August 31 and the CDC's eviction orders to July 31 and from August 3 to 26.77
The States
The States had in force the emergencies of thirty-five jurisdictions on July 2 and twenty-five on September 21 and the instruments those emergencies kept alive; the universal indoor masking and exposure-control orders of Nevada (July 30), the District (July 31), Louisiana (August 4), Oregon (August 13), New Mexico (August 20), Washington (August 23), Illinois (August 30) and Hawaii (throughout) and the unvaccinated-person masking and exposure-control rules of California, Connecticut, New York (Subpart 66-3 to August 27; 10 NYCRR 2.60 thereafter), Rhode Island (to August 31), Washington (to August 22) and New Mexico (to August 19); Hawaii's Safe Travels condition on every trans-Pacific passenger and Executive Order 21-05's gathering and capacity caps; Kansas's and Rhode Island's quarantines of arrivals from designated States; school and child-care masking and exposure-control orders in eighteen States and the District; worker vaccination or vaccination-or-testing mandates with deadlines inside the quarter in California, New York, New Jersey, Connecticut, Illinois, Maryland, New Mexico, North Carolina, Virginia, Hawaii, Delaware and the District and with October deadlines in Washington, Oregon, Rhode Island, Maine, Massachusetts, Colorado and Kentucky; workplace exclusion standards in California, Oregon, Virginia, Washington, New Mexico and New York; eviction moratoria in Washington, California, Illinois, New Jersey, New York and Minnesota; the health-department sub-orders of Pennsylvania (the vaccine-provider order; the elective-procedure reduction order to August 23), New Jersey (the Directives), Delaware (ten emergency orders effective September 30), Massachusetts, California and Michigan; the residential-care orders of fifteen States; the Texas Supreme Court's Thirty-Eighth and Fortieth Emergency Orders and the judicial emergencies of at least twenty-nine States; the alcohol regulators' license conditions and the guidance implementing them (Texas's SB 968, as the TABC's announcement of August 11, 2021 implemented it; New Jersey's permits to 2022; Massachusetts' outdoor allowances to August 15 and Illinois' renewal extension, as the regulators' advisories record); the gaming regulators' orders (Louisiana Orders 24 to 29; Nevada's Notice 2021-71); the insurance and utility instruments (Washington's Emergency Order 20-01 to October 3; Texas's § 542.059 suspensions to September 20, the date Bulletin B-0020-21 fixed; New York's ch. 106 of 2021 to December 21); the notarial instruments (Massachusetts to December 15; Illinois and New Jersey through the quarter); the 2021 preemption statutes and counter-orders themselves; the tribal orders of the Navajo, Mescalero and Yakama Nations; and Puerto Rico's vaccination-or-testing orders on every restaurant, bar, venue, gym, salon, child-care center, casino and grocery.78
The metropolitan layer
The metropolitan layer added the indoor masking and exposure-control orders of Los Angeles County (July 17), Sacramento and Yolo (July 30), St. Louis City and County (July 26), New Orleans (July 31), Kansas City (August 2), the eight Bay Area jurisdictions (August 3), Prince George's (August 5) and Montgomery (August 7) Counties, Multnomah County (August 9), Baltimore (August 9), Dallas County (August 11), Philadelphia (August 12), Chicago (August 20), Cook County (August 23), Boston (August 27), King County (September 7), Columbus (September 10), Dayton (September 17), Atlanta, Savannah, Birmingham, Jackson, Columbia, Charlotte, Durham, Raleigh, Iowa City, Dane County, Monroe County, Lincoln, Shelby County and their counterparts; the vaccination-proof conditions of entry of New York City (August 17), San Francisco (August 20), New Orleans (August 16) and Honolulu (September 13), with King County's Verification of Vaccination Order issued September 16, 2021 for compliance from October 25, 2021; the school and district orders of every large metro; and the local emergencies that never ended in the period.79
What was not in force, and why it is listed
Not in force in the third quarter of 2021, and listed for no purpose but to show that the proof rests on none of them: the FFCRA leave mandate (December 31, 2020); the FEMA export detention rule (June 30, 2021); the No Sail Orders (October 31, 2020, replaced by the Conditional Sailing Order); the immigrant and temporary-worker suspensions of Proclamations 10014, 10052 and 10131 (February 24 and March 31, 2021); the 2020 federal workplace directives and the 25 percent occupancy cap (June 10, 2021); the spring and summer 2020 and winter 2020-21 traveler quarantines other than Hawaii's, Kansas's and Rhode Island's (the last to July 6, 2021), including Chicago's Emergency Travel Order (advisory from June 29, 2021, Ex. MET-CHI-019); every statewide stay-at-home order, non-essential-business closure, restaurant and bar closure and general capacity cap outside Hawaii and New Mexico's July 1 lifting; the statewide masking and exposure-control orders of the forty jurisdictions that had ended them before July 1 and had not reinstated them; the 2020 and early-2021 court closures and blanket jury suspensions that had been superseded; and the earlier moratorium periods each replaced by the next.80 The Library's meetings collection carries the group meetings, trade shows, conventions, fairs and recurring gatherings the orders of every layer disrupted in each quarter, with the venue orders in force on each event's dates and the organizers' stated actions, including the gatherings of the third quarter of 2021 that were held, sold or cancelled under the instruments listed here.
The record the sentence describes
The sentence asserts that none of those instruments existed. It is factually incorrect. The Service does not say what record it consulted before writing it. At the preliminary-injunction hearing of July 16, 2024 in Stenson Tamaddon, LLC v. IRS, No. 2:24-cv-01123-SPL (D. Ariz.), counsel for the United States described what the Service was doing with the claims before it (the transcript is cited as "Tr."):
the IRS is now taking a closer look at every single claim.
Tr. 16:9-10
they're doing more follow-up, Your Honor, with the taxpayers about the amount of gross receipts; what sort of state, local, or government orders they're relying upon in claiming the ERC.
Tr. 51:1-4
The orders taxpayers rely upon are the orders on this page.81 They were published by the authorities that issued them, in the Federal Register, the State registers and the county codes, by number, date and page, and they are subject to judicial notice.82 A letter that reports the absence of instruments those sources record is not a finding about the taxpayer; it is a misstatement about the public record, and the record corrects it.