The governmental orders by layer
The orders that reached agriculture, food processing and agribusiness came from every level of government with power over the commerce, travel and meetings this industry depends on: the President and the federal agencies; the fifty States and the District of Columbia; the counties, cities and health districts of every large metropolitan area; the sector regulators that govern farms, plants, housing and workplaces; the standing statutes and rules that commanded the same conduct of every employer whether or not an order named it; the authorities that ordered the industry's counterparties closed or conditioned; and the governments of the countries with which the industry trades. This section sets out each layer with the instruments, dates and exhibit IDs, quarter by quarter where the layer changed, so that the quarters section can state the finding for each quarter on a record the Service cannot say does not exist.
The universe
The Centers for Disease Control and Prevention recorded that forty-two States and territories issued mandatory stay-at-home orders between March 1 and May 31, 2020, reaching 2,355 of the nation's 3,233 counties.23 The Council of State Governments counted 2,065 gubernatorial executive orders on COVID-19 issued through June 29, 2020.24 The COVID Analysis and Mapping of Policies database records more than 20,000 national and State policies and about 8,000 county policies in the United States, ninety-five percent of them issued before November 23, 2021.25 The Department of Health and Human Services' policy tracker holds 4,218 entries.26 On July 2, 2021 thirty-five States were under declared emergencies and nine had statewide face-covering requirements, airborne-transmission controls on indoor public settings and workplaces; on September 21, 2021 twenty-five States remained under declared emergencies and eleven had such requirements.27 The Bureau of Labor Statistics recorded unemployment of 14.7 percent and a payroll loss of 20.5 million in April 2020, "the highest rate and the largest over-the-month increase in the history of the series"; the Bureau of Economic Analysis recorded a 32.9 percent annualized fall in real GDP in the second quarter of 2020.28 The Library indexes the instruments The COVID Project retrieved and graded, each an instrument or a governmental record of an instrument saved from the issuing authority's publication; the count is stated at The Scale as a count of instruments indexed, not as a count of the orders that reached any employer and not as an estimate of what the authorities issued.
The federal layer
The second quarter of 2020
On April 1, 2020 the following federal instruments limiting commerce, travel or group meetings were in force and reached this industry: Proclamations 9984 (China), 9992 (Iran), 9993 (Schengen Area) and 9996 (United Kingdom and Ireland), barring the entry of persons who had been in those countries;29 the Department of Homeland Security's notifications of March 24, 2020 limiting both land borders to essential travel from 11:59 p.m. March 20, 2020;30 the Centers for Disease Control and Prevention's order of March 20, 2020 under Title 42 suspending the introduction of covered persons from Canada and Mexico;31 the Department of State's suspension of routine visa services effective March 20, 2020, with H-2 processing continued only "as much as possible, as permitted by post resources and local government restrictions" from March 26;32 the closure of every USCIS office to the public from March 18, 2020;33 Executive Orders 13909, 13910 and 13911 under the Defense Production Act and the Secretary of Health and Human Services' designation of scarce materials effective March 25, 2020, which made the accumulation of respirators, gloves and gowns above reasonable demand a federal crime;34 the Families First Coronavirus Response Act's leave mandates from April 1, 2020;35 and the Treasury's temporary rule of April 20, 2020 postponing duties for importers whose operation "is fully or partially suspended during March or April 2020 due to orders from a competent governmental authority limiting commerce, travel, or group meetings because of COVID-19."36 During the quarter the President added Proclamation 10014 (immigrant entry suspended from April 23), Executive Order 13917 (meat and poultry under the Defense Production Act, April 28), Proclamations 10041 and 10042 (Brazil, May 26) and Proclamation 10052 (H-1B, H-2B, L and J entry suspended from June 24, with the food-supply-chain exception);37 the Department of Homeland Security added its H-2A temporary final rule of April 20 and its H-2B rule of May 14, 2020, and FEMA placed the export of respirators, gloves and gowns under federal allocation from April 7, 2020;38 the Department of Agriculture adopted the Coronavirus Food Assistance Program rule of May 21, 2020 on the finding that "many farmers markets, restaurants, and schools have temporarily or permanently closed";39 and the CDC and OSHA issued on April 26, 2020 the interim guidance for meat and poultry processing that Executive Order 13917 directed the Secretary to enforce.40 Every one of those instruments was in force on June 30, 2020.
The third and fourth quarters of 2020
The entry proclamations, the immigrant and nonimmigrant suspensions, the land-border notifications (renewed monthly), the Title 42 order as amended and then replaced on October 13, 2020, the FEMA export-allocation rule as extended August 10 and December 31, 2020, and the scarce-materials designation as extended July 30, 2020 were in force on every day.41 The Department of State began a phased, post-by-post resumption of routine visa services on July 15, 2020.42 The Department of Homeland Security re-issued its H-2A rule on August 20, 2020 with a filing window to December 17, 2020, and again on December 18, 2020 with a window to June 16, 2021.43 The CDC published its second count of the meat and poultry outbreak on July 10, 2020 (16,233 cases in 239 facilities in twenty-three States) and its investigation of the Sioux Falls plant on August 7, 2020; OSHA cited JBS Greeley on September 11, 2020.44 The Department of Labor revised the FFCRA leave rule on September 16, 2020, and the leave mandates ran to December 31, 2020.45 On December 28, 2020 the CDC imposed pre-departure testing on arrivals from the United Kingdom, and on December 31, 2020 the President carried the immigrant and nonimmigrant suspensions to March 31, 2021.46 The Department of Agriculture adopted CFAP 2 on September 22, 2020 on the finding of "continuing market disruptions."47
The first quarter of 2021
Proclamation 10143 continued the Schengen Area, United Kingdom, Ireland and Brazil suspensions from January 26, 2021 and added South Africa from January 30, 2021 (Ex. FED-207); the CDC's amended order required a negative pre-departure test of every air passenger from any foreign country from January 26, 2021; the CDC's conveyance order took effect at 11:59 p.m. on February 1, 2021 and the TSA's Security Directive 1582/84-21-01 enforced it on every bus, rail and ferry system from that date; the land-border notifications continued monthly; the scarce-materials designation was extended February 1, 2021; the Department of Agriculture adopted its Additional Assistance rule on January 19, 2021; Proclamation 10014 was revoked February 24, 2021 and Proclamation 10052 expired March 31, 2021.48 OSHA issued its National Emphasis Program on March 12, 2021, directing inspections to industries with high exposure, among them meat and poultry processing.49 The Department of Homeland Security's H-2A rule of December 18, 2020 governed petitions through June 16, 2021.50
The second quarter of 2021
Proclamation 10199 suspended entry from India from May 4, 2021: the United States was adding countries to the suspensions in the second quarter of 2021.51 The TSA's directive SD 1582/84-21-01A took effect May 12, 2021; the Department of Homeland Security and the Department of Labor increased the H-2B cap by temporary final rule on May 25, 2021, effective through September 30, 2021; OSHA's Healthcare Emergency Temporary Standard took effect June 21, 2021; the White House published its 100-day supply-chain review on June 8, 2021 and established the Supply Chain Disruptions Task Force for "homebuilding and construction, semiconductors, transportation, and agriculture and food"; the FEMA export-allocation rule expired June 30, 2021; the land-border notifications of June 23, 2021 ran to July 21.52
The third quarter of 2021
The quarters section states the federal inventory for July 1 to September 30, 2021 instrument by instrument. In summary: Executive Order 13917 and the other Defense Production Act orders, never revoked; Proclamations 9984, 9992, 10143 and 10199; the land-border notifications of June 23, July 22, August 23 and September 22, 2021; the Title 42 order of October 13, 2020, reassessed and continued August 2, 2021; the CDC pre-departure testing order; the CDC conveyance order with TSA directives -01A (to September 13) and -01B (from September 14); the scarce-materials designation, extended July 7, 2021 to November 15, 2021; OSHA's revised National Emphasis Program of July 7, 2021 naming NAICS 311611, 311612 and 311615; the H-2B supplemental-cap rule through September 30, 2021; the Safer Federal Workforce Task Force's reinstatement on July 29, 2021 of face coverings among the federal workplace exposure controls and Executive Orders 14042 and 14043 of September 9, 2021; the renewal of the public health emergency determination on July 19, 2021; the CDC eviction orders of June 24, 2021 (in force July 1 to July 31) and August 3, 2021 (in force August 3 to its vacatur on August 26, 2021); the NMFS observer-waiver rule in force to March 26, 2022; the conveyance order's application at every cargo handling facility, recorded in the Coast Guard's bulletins (cited as context, not as orders); and the Department of Agriculture's CFAP 2 rule of August 27, 2021 with its finding of "continuing market disruptions."53
The fifty States
The pattern
Every State but South Dakota, and the District, closed restaurants and bars to on-premises service by order between March 15 and April 3, 2020, the great majority by March 24; in South Dakota the closures were municipal (Brookings, Sioux Falls and Rapid City, March 23-27, 2020); every State closed its schools to in-person instruction by March 23, 2020; together those orders took the industry's food-service and school-meal channels within three weeks; and the forty-two States and the District whose stay-at-home, shelter or essential-services orders the fifty-State table on this page lists then ordered their residents to stay at home between March 19 and April 7, 2020, closing every business not on an essential list and conditioning every business on the list.54 Farms, food manufacturers and their supply chains were on every essential list, which is to say that every State made their continued operation conditional on the workplace infection-prevention and exposure-control rules that the essential designation carried: distancing, hygiene, screening and, from April, face coverings. The stay-at-home orders lapsed in most States between late April and mid-June 2020; California's remained in force until June 15, 2021 and New Mexico re-imposed its stay-at-home instruction in November 2020. They were replaced by phased reopening orders that fixed capacity percentages for restaurants, bars, retail, gatherings and events and imposed sector-specific operating rules, many of them naming manufacturing and agriculture. A second wave of closure and capacity orders ran from November 2020 through January and February 2021 in California, Illinois, Michigan, Minnesota, New Mexico, Oregon, Washington, Pennsylvania, Colorado, Nevada, Rhode Island, Massachusetts, Kentucky, Ohio and elsewhere. The general capacity and gathering limits ended in 2020 in six States (South Dakota, Wisconsin, Alaska, Kansas, Missouri, Florida), between January and March 2021 in thirteen more (North Dakota, Nebraska, Tennessee, Montana, Idaho, Iowa, Arkansas, South Carolina, Mississippi, Texas, Oklahoma, Wyoming, Arizona), and between April 6 (Indiana) and July 1, 2021 (New Mexico) in thirty of the remaining thirty-one States and in the District, with Minnesota's caps ending May 27 and Oregon's and Washington's June 30; Hawaii's did not end before September 30, 2021. Statewide face-covering orders, airborne-transmission controls that bound every indoor public setting and workplace, ended between April and June 2021 in most States and were reinstated in Nevada, Louisiana, Oregon, New Mexico, Washington, Illinois and the District between July 27 and August 30, 2021, and Hawaii's statewide requirement never lapsed. This subsection states the analysis by region; the fifty-State table on this page states the fifty-one rows.
The West
Washington and Oregon regulated the farm directly. Washington's Proclamation 20-25 of March 23, 2020 ordered every resident to stay home and every business not on the State's essential-workforce list to close; Proclamation 20-57 of May 28, 2020 prohibited any agricultural employer from operating after June 3, 2020 except in compliance with the Agriculture COVID-19 Requirements; the housing rules of May 18, 2020 were readopted September 10, 2020, January 8, 2021 and May 28 and June 1, 2021; Proclamation 20-25.8 of November 15, 2020 (effective November 17; indoor dining closed from November 18) closed indoor dining, gyms and indoor entertainment to January 11, 2021 (Ex. WA-047); the Roadmap phases held restaurants at 25 and then 50 percent to June 30, 2021; Washington Ready of July 1, 2021 ended the caps; and the Secretary of Health's Order 20-03.4 reinstated the indoor face-covering requirement for every person regardless of vaccination status from August 23, 2021, an airborne-transmission control on every indoor public setting and workplace, with Proclamation 20-25.15 forbidding businesses to admit unmasked persons.55 Oregon's Executive Order 20-12 of March 23, 2020 closed businesses and ordered residents home; Oregon OSHA's AO 2-2020 regulated the field, the crew bus and the labor camp from May 11 to October 24, 2020, OAR 437-001-0744 regulated every workplace from November 16, 2020 and permanently from May 4, 2021, and OAR 437-004-1115 regulated labor housing from April 30 through October 24, 2021; the Governor's freeze of November 18, 2020 and the county-tier framework of December 3, 2020 ran to its rescission at 12:01 a.m. on June 30, 2021; and the Oregon Health Authority reinstated the indoor face-covering requirement from August 13, 2021, while Oregon OSHA's AO 10-2021 restored it on the same day as one of the exposure controls of OAR 437-001-0744, which already required of every workplace an exposure assessment, an infection control plan, notification and exclusion procedures and ventilation measures.56 California's Executive Order N-33-20 of March 19, 2020 ordered every resident to stay home and remained in force until June 15, 2021; the Regional Stay at Home Order closed the State's largest regions from December 2020 to January 25, 2021; Executive Order N-51-20 required supplemental paid sick leave of food-sector employers with 500 or more employees from April 16, 2020; Cal/OSHA's emergency standard regulated every workplace, every labor camp and every crew vehicle from November 30, 2020 and was readopted June 17, 2021; the Beyond the Blueprint order of June 11, 2021 kept mega-event, K-12, health-care and transit rules; and the July 28, 2021 face-covering guidance (an airborne-transmission control the State applied to the unvaccinated indoors and to everyone in K-12, health-care and transit settings), the K-12 order of July 12, 2021 and the health-care-worker vaccination orders of July 26 and August 5, 2021 governed the third quarter.57 Arizona's stay-home order of March 31, 2020 ran to May 15, 2020; its capacity and event rules ran to March 25, 2021; the Navajo Nation, which occupies the northeast of the State, imposed weekend lockdowns, curfews, a face-covering mandate (an airborne-transmission control on every business and public place within the Nation) and business-status orders that were still being continued in October 2021.58 Colorado's stay-at-home order of March 26, 2020 ran to April 26; its dial system placed the Front Range in Level Red from November 20, 2020; PHO 20-38 handed the dial to the counties on April 16, 2021; and the State's face-covering order, an airborne-transmission control on every indoor public space and workplace, ran to June 1, 2021 (Ex. CO-031; Ex. CO-040).59 New Mexico's public health emergency order of March 24, 2020 closed non-essential businesses and confined essential ones; its winter orders of November 2020 closed indoor dining and imposed a two-week reset; its capacity framework ran to July 1, 2021 with mandatory COVID-safe practices and a $5,000 penalty thereafter; and its Public Health Emergency Order of August 17, 2021 (indoor face-covering directive from August 20), which restored an airborne-transmission control in every indoor public space alongside the mandatory COVID-safe practices already in force, ran through the quarter.60 Nevada's stay-home order of April 1, 2020, its Pause of November 2020 and its capacity framework to June 1, 2021 were followed by Directive 047 of July 27, 2021, reinstating the universal indoor face-covering requirement, an airborne-transmission control binding every business and indoor public space in counties of substantial or high transmission, from July 30, 2021.61 Hawaii never ended its general restrictions before September 30, 2021: the statewide quarantine of arrivals from March 26, 2020, the interisland quarantine, the Safe Travels testing program, the statewide face-covering order (carried in every proclamation as one of the State's airborne-transmission controls) and, from August 5 and 10, 2021, the Delta proclamation and Executive Order 21-05's limits on gatherings, restaurants, bars and gyms governed the whole period.62 Idaho, Montana, Utah, Wyoming and Alaska ended their general restrictions between May 2020 and May 2021; each kept an emergency declaration, a health-care or school instrument, or a local order in force in the third quarter of 2021, and Alaska's Health Mandate 017 governed every independent fishing vessel that delivered to a processor in the 2020 season.63
The Midwest
The Midwest is the processing tier's home and the site of the April 2020 plant closures. Illinois's Executive Order 2020-10 of March 20, 2020 ordered residents home from March 21; its Tier 3 mitigations of November 20, 2020 closed indoor dining statewide; its capacity rules ran to June 11, 2021; and its Executive Order 2021-20 of August 26, 2021 reinstated the indoor face-covering requirement for every person regardless of vaccination status from August 30, 2021, an airborne-transmission control on every indoor workplace and public setting.64 Michigan's Executive Order 2020-21 of March 23, 2020 suspended every activity "not necessary to sustain or protect life" from March 24; manufacturing resumed only May 11, 2020 under Executive Order 2020-77; Executive Orders 2020-114 and 2020-145 imposed workplace safeguards on food processors and agricultural employers; the MDHHS testing order of August 3, 2020 governed every migrant camp, meat, poultry and egg processor and greenhouse with more than twenty workers until July 1, 2021; MIOSHA's emergency rules of October 14, 2020 governed every workplace to June 22, 2021; the MDHHS gatherings and face mask orders governed from October 5, 2020 to June 22, 2021; and the Oakland and Wayne County school orders and the Detroit emergency declarations governed the third quarter of 2021.65 Minnesota's Executive Order 20-20 (issued March 25, effective March 27, 2020) ordered residents home; Executive Orders 20-40 and 20-56 required a written preparedness plan of every business from April 27 and May 18, 2020; Executive Order 20-81 required face coverings in every indoor business and public space from July 25, 2020, an airborne-transmission control added to the written preparedness plans already required of every business; Executive Order 20-99 closed on-premises food service from November 20, 2020; the peacetime emergency ended July 1, 2021.66 Iowa's proclamation of March 17, 2020 closed restaurants and bars; its later proclamations imposed capacity limits and, from November 2020, face-covering rules (airborne-transmission controls layered on the mandatory six-foot seated-service rule) to February 7, 2021; Iowa City reinstated its indoor face-covering requirement, an airborne-transmission control on every indoor public place in the city, from August 19, 2021.67 Kansas's stay-home order of March 30, 2020 ran to May 3; its later regime was county-level; Johnson County and the Unified Government of Wyandotte County reinstated indoor face-covering orders, airborne-transmission controls on every indoor public space and workplace in the county, in August 2021.68 Nebraska's directed health measures closed dining rooms and capped gatherings from March 19, 2020, and the Lincoln-Lancaster County directed health measure of August 24, 2021 reinstated the indoor face-covering requirement as an airborne-transmission control on every indoor public place.69 South Dakota's Executive Order 2020-12 of April 6, 2020 ordered employers and residents in mandatory terms; its Back to Normal Plan of April 28, 2020 remained "in effect for the duration"; the Sioux Falls plant closed after the Governor's and Mayor's request of April 11, 2020 (Ex. SEC-20-020); the Cheyenne River Sioux Tribe's checkpoints and orders governed its reservation.70 Ohio's Stay at Home Order of March 22, 2020, its Stay Safe Ohio Order of April 30, 2020 with manufacturing conditions, its curfew of November 2020 and its general orders to June 2, 2021 were followed by court, school and municipal orders (Columbus Ordinance 2388-2021, effective September 14, 2021, requiring face coverings, as a workplace exposure control, in manufacturing and agricultural workplaces by code; Dayton's ordinance adopted September 15 (effective September 17, 2021)) in the third quarter.71 Indiana's stay-home order of March 24, 2020 and its capacity framework to April 6, 2021 were followed by monthly emergency renewals and the Marion County courts' order of August 16, 2021.72 Wisconsin's Safer at Home order of March 25, 2020 was voided by the State Supreme Court on May 13, 2020; the Governor's face-covering orders, airborne-transmission controls on every indoor public setting, ran to March 31, 2021; Milwaukee's own stay-at-home order and Dane County's orders governed locally, and Dane County reinstated its indoor face-covering requirement, the same control on every indoor public place in the county, from August 19, 2021.73 Missouri's stay-home order of April 6, 2020 ran to May 3 and its general restrictions ended June 15, 2020; St. Louis City and County and Kansas City governed thereafter, closing indoor dining in November 2020 and reinstating indoor face-covering requirements, airborne-transmission controls on every indoor public building and business, on July 26 and August 2, 2021.74 North Dakota's orders closed dining rooms from March 20, 2020, required quarantine of travelers, and imposed a statewide face-covering mandate from November 14, 2020 to January 18, 2021, an airborne-transmission control that every business had to enforce against its workers, customers and visitors, and, by Executive Order 2020-43 of November 13, 2020, capacity limits on bars, restaurants and event venues.75
The South
The South holds the poultry tier and the winter vegetable and citrus regions. Texas's GA-08 of March 19, 2020 closed restaurants and bars to on-premises service and closed schools; GA-14 of March 31, 2020 (effective April 2) confined the State to essential services; GA-29 of July 2, 2020 imposed the statewide face-covering requirement, an airborne-transmission control layered on GA-28's capacity limits and bar closure; GA-32 of October 7, 2020 fixed capacities and the hospitalization trigger that cut the Dallas-Fort Worth region back to 50 percent on December 3, 2020; GA-34 ended the general regime March 10, 2021; and GA-38 of July 29, 2021, the county face-covering orders of August 2021 (airborne-transmission controls on every commercial entity and public space in the issuing counties) and the resulting litigation governed the third quarter.76 North Carolina's Executive Order 121 of March 27, 2020 ordered residents home from March 30; Executive Order 147 of June 24, 2020 imposed its workplace exposure-control rules on this industry directly, surgical masks of every worker in every meat and poultry plant and face coverings of every farm and farm labor contractor worker within six feet of another, from June 26, 2020, carried forward by Executive Orders 163, 181 and 209 until Executive Order 215 lifted it on May 14, 2021; Executive Order 224 of July 29, 2021 required vaccination or testing of cabinet-agency workers from September 1, 2021; and Mecklenburg, Durham, Orange, Wake and Raleigh reinstated indoor face-covering requirements, airborne-transmission controls on every indoor public place and business, between August 9 and August 31, 2021.77 Georgia's Executive Order 04.02.20.01 of April 2, 2020 ordered residents to shelter in place from April 3 and imposed sixteen measures on every Critical Infrastructure employer, including food processors; its gathering caps and shelter order ran to April 8, 2021 (Ex. GA-034), its mandatory sector measures to April 30, 2021 and its "shall implement" duties on every Organization to July 1, 2021 (Ex. GA-035; Ex. GA-038; Ex. GA-040); the Economic Recovery State of Emergency and Executive Order 08.19.21.03 governed the third quarter of 2021 with Atlanta's and Savannah's face-covering and gathering orders, airborne-transmission controls and gathering limits on every indoor public place in those cities.78 Virginia's Executive Order 55 of March 30, 2020 ordered residents home; the Safety and Health Codes Board's emergency temporary standard of July 27, 2020 and permanent standard of January 27, 2021, amended September 8, 2021, bound every employer in the Commonwealth, naming poultry, meat and seafood processing and agricultural and hand labor; Executive Order 72's curfew and ten-person cap governed the winter; the general restrictions ended May 28, 2021; and the Order of Public Health Emergency Ten of August 12, 2021 placed every K-12 school under a face-covering requirement, an airborne-transmission control on the workforce's schools.79 Louisiana's stay-at-home proclamation of March 22, 2020, its phases, its face-covering order of July 13, 2020 to April 28, 2021, an airborne-transmission control on every business and indoor public space (Ex. LA-014; Ex. LA-030), its remaining business conditions to May 26, 2021 (Ex. LA-032) and Proclamation 137 JBE 2021 of August 2, 2021 (effective August 4; renewed August 31 and September 28) governed the industry's Gulf seafood and sugar regions.80 Kentucky's Executive Order 2020-257 of March 25, 2020 closed non-life-sustaining businesses; its Healthy at Work minimum requirements of May 9, 2020 and manufacturing requirements of May 11, 2020 required "six-foot distancing for their entire shift" and ran to June 11, 2021; its November 2020 school closure and its Executive Order 2021-585 of August 10, 2021 (face coverings required in every school and child-care setting, the same control on the institutions the workforce depends on) reached the workforce.81 Alabama, Mississippi, Tennessee, South Carolina and Florida issued stay-at-home or safer-at-home orders between March 31 and April 7, 2020; Oklahoma ordered vulnerable persons home March 24 and closed every non-critical business statewide April 1 (Ex. OK-006; Ex. OK-011); Arkansas, which issued no stay-at-home order, bound every business, manufacturer and place of worship to mandatory protocols by EO 20-13 of April 6, 2020 after closing dine-in, gyms, venues and casinos from March 20 (Ex. AR-003; Ex. AR-035); all seven issued phased reopening orders with capacity steps through 2020, and ended their general restrictions between September 25, 2020 (Florida) and May 31, 2021 (Alabama's last Safer Apart order, Ex. AL-051; its emergency ended July 6, 2021, Ex. AL-079); Florida's Executive Order 20-244 of September 25, 2020 suspended local fines while leaving local face-covering rules on the books, and Florida's Executive Order 21-175 of July 30, 2021 and the Department of Health's rule of August 6, 2021 governed schools in the third quarter.82 Maryland's stay-at-home order of March 30, 2020, its county-permitted stricter rules, its capacity orders to May 15, 2021 and its emergency to July 1, 2021 with a grace period to August 15, 2021 were followed by Montgomery County's and Prince George's County's indoor face-covering orders, airborne-transmission controls on every indoor public place, from August 7 and 8, 2021 and the Judiciary's courthouse face-covering order of August 9, 2021, the same control on every courthouse in the State.83 The District of Columbia's stay-at-home order of April 1, 2020 and its phases ran to June 11, 2021; Mayor's Order 2021-097 reinstated the indoor face-covering requirement, an airborne-transmission control on every indoor public setting and workplace in the District, from 5:00 a.m. July 31, 2021.84 Delaware and West Virginia followed the same pattern, with Delaware's general restrictions ending May 21, 2021 with residual business duties to July 12 and its emergency July 13, 2021, and West Virginia's framework ending April 20, 2021 with its face-covering order, an airborne-transmission control on every indoor public place, to June 20, 2021, and both kept emergency declarations and school or health-care instruments in force in the third quarter.85
The Northeast
New York's Executive Orders 202.6 and 202.8 of March 18 and 20, 2020 cut the in-person workforce of every business not designated essential to zero from March 22, with essential manufacturing and food production defined by the Empire State Development guidance; the New York Forward phases ran from May 15, 2020; the Cluster Action Initiative closed zones from October 6, 2020; the second closure of New York City's indoor dining ran from December 14, 2020 to February 12, 2021; the State's percentage capacity limits ended May 19, 2021 under Executive Order 202.108, its remaining gathering limits June 15, 2021 under Executive Order 202.111, and its emergency June 24, 2021; the HERO Act of May 5, 2021 required every employer, farm employers included, to adopt an airborne infectious disease exposure prevention plan, and the Commissioner of Health's designation of September 6, 2021 activated every plan; and 10 NYCRR 2.61 and 2.60 of August 26 and 27, 2021 required vaccination of every hospital and nursing-home worker and placed every school under a face-covering requirement, an airborne-transmission control on the workforce's schools.86 New Jersey's Executive Order 107 of March 21, 2020 ordered residents home and required every employer to accommodate telework; Executive Order 122 of April 8, 2020 imposed mitigation requirements on every manufacturing and warehousing operation; Executive Order 192 of October 28, 2020 imposed mandatory health and safety protocols on every workplace from November 5, 2020, lifted in part May 28 and June 4, 2021, with its requirements for unvaccinated or unverified employees and daily health checks carried into the third quarter of 2021 by Executive Orders 242 and 243 (Ex. NJ-050; Ex. NJ-051); Executive Order 243 ended the general restrictions June 4, 2021; and Executive Orders 251, 252 and 253 of August 2021 placed every school under a face-covering requirement and required vaccination or testing of health-care and school workers.87 Pennsylvania's orders of March 19, 2020 closed every business that was not life-sustaining; its order of April 15, 2020 imposed worker-safety measures on every business that remained open, food processors included; its telework and mitigation orders of November 23, 2020 ("Unless impossible, all businesses must conduct their operations remotely") and December 12, 2020 governed the winter; its mitigation orders expired May 31, 2021, the General Assembly terminated the disaster emergency June 10, 2021 and the universal face-covering order, an airborne-transmission control on every indoor public setting, was terminated June 28, 2021; and the Acting Secretary of Health's school face-covering order took effect September 7, 2021.88 Massachusetts's Order No. 13 of March 24, 2020 closed non-essential workplaces; its mandatory safety standards for manufacturing governed the reopening; its Order No. 69 ended the general restrictions May 29, 2021; and Somerville, Boston, Brookline and Cambridge reinstated indoor face-covering orders, airborne-transmission controls on every indoor public place, between August 20 and September 3, 2021 (Ex. MET-BOS-063; Ex. MET-BOS-013; Ex. MET-BOS-150; Ex. MET-BOS-036).89 Connecticut, Rhode Island, Vermont, New Hampshire and Maine issued stay-home or closure orders between March 20 and April 2, 2020, sector rules with capacity steps through 2020 and early 2021, traveler quarantines that reached seasonal crews, and ended their general restrictions between May 7, 2021 (New Hampshire, Ex. NH-038) and June 15, 2021 (Vermont, Ex. VT-098); Rhode Island's and Maine's emergencies ran to July 6 and June 30, 2021 (Ex. RI-047; Ex. ME-060); each kept an emergency declaration, a judicial emergency or a school or health-care instrument in force in the third quarter of 2021, and Connecticut's Executive Order 13A of August 5, 2021 and Rhode Island's Executive Order 21-87 of August 19, 2021 placed their schools under face-covering requirements.90
Preemption and its consequence
In Texas, Georgia, Florida, Arizona, Tennessee, Missouri and Arkansas the State limited or displaced local orders in 2021; Kansas's SB 40 revoked the State's own orders on March 31, 2021 and made county orders challengeable without barring them (Ex. KS-040). Preemption did not end the orders; it changed their author. GA-38 (July 29, 2021), Georgia's Executive Order 08.19.21.03, Florida's Executive Order 21-175, Arizona's Executive Order 2021-06 and Missouri's RSMo 67.265 are themselves orders of appropriate governmental authorities dictating what rules businesses in those States operated under in the third quarter of 2021, and the county and court orders issued in the teeth of them (Dallas County's face-covering order of August 11, 2021, an airborne-transmission control on every commercial entity and public space in the county; Harris County's school and courthouse orders of August 11-17, 2021; Bexar County's NW-21 of August 10, 2021; St. Louis City's Order No. 1 of July 26, 2021, which the Attorney General's suit did not reach) were in force on the ground until a court said otherwise, and in most cases no court did.91
The largest metros
The pattern
The local layer moved before the States in March 2020, went further during the reopening, rolled back in the winter of 2020-21 while the States eased, and reimposed face-covering, vaccination-proof and gathering orders in July, August and September 2021 after every State but a few had lifted its own. For this industry the local layer matters in three ways: it governed the restaurants, markets, hotels, stadiums and institutional kitchens that bought the industry's product in the nation's largest markets; it governed the plants, packing houses, produce terminals and distribution centers located within the metros; and it governed the workforce that lived there. The metro table on this page states the rows. Examples: New York City's Emergency Executive Order 100 of March 16, 2020 closed every restaurant and bar to on-premises service at 8:00 p.m. that night, Emergency Executive Order 103 of March 25, 2020 cut the in-person workforce of every business not designated essential to zero, and Emergency Executive Order 225 of August 16, 2021 (Key to NYC) forbade every indoor restaurant, bar, food court and catering hall to admit any patron or employee without proof of vaccination from August 17, 2021, with fines from September 13.92 Los Angeles County's Safer at Home Order of March 21, 2020 ordered every business not designated essential to "cease in-person operations and close to the public," its Revised Temporary Targeted Safer at Home Order of December 30, 2020 renewed the stay-home command and closed all in-person dining, and its order of July 16, 2021 reinstated universal indoor face coverings from July 17, 2021 as an airborne-transmission control on every indoor public setting and workplace in the County.93 Chicago's Department of Public Health kept manufacturers to staggered shifts and reduced line speeds from May 29, 2020, bound every business to the workplace infection-prevention and exposure-control requirements of employee screening at the start of every shift and face coverings from June 5, 2020 through the third quarter of 2021, and reinstated the indoor face-covering requirement for every person on August 20, 2021, with Cook County following August 23.94 Harris County's Stay Home, Work Safe Order of March 24, 2020, Dallas County's Stay Home Stay Safe order of March 22, 2020 with its binding Rules for Manufacturers and Distributors and its Supplemental Order on Food Processing Plants of May 15, 2020 (screening, distancing, staggered shifts, line-speed reductions), and the county face-covering orders of August 11-17, 2021 governed the Texas metros.95 The San Francisco Bay Area's seven health officers issued identical shelter-in-place orders effective March 17, 2020 and identical indoor face-covering orders effective August 3, 2021, airborne-transmission controls that each required every business to implement; Sacramento County ordered face coverings "in all indoor public settings, venues, gatherings, and workplaces" from July 30, 2021, with the express provision that the order "takes precedence over the more permissive ETS regarding employee face coverings."96 Columbus's Ordinance 2388-2021, effective September 14, 2021, required face coverings, as a workplace exposure control, in every place of business and in manufacturing, construction and agricultural workplaces where distancing was difficult.97 St. Louis City and County closed indoor dining from November 17, 2020 and reinstated indoor face-covering requirements, airborne-transmission controls on every indoor public building and business, from July 26, 2021; Kansas City reinstated its own from August 2, 2021, with suspension of the certificate of occupancy as the sanction; Jackson, Johnson and Wyandotte Counties followed within a week.98 The Twin Cities, Detroit, Denver, Seattle, Philadelphia, Boston, Washington's suburbs, Atlanta, New Orleans, Honolulu and the other metros in the metro table followed the same pattern, and each has its own page in the Library's metros collection.
The sector regulators
The federal regulators
The President's Executive Order 13917 of April 28, 2020 placed meat and poultry processors under section 101 of the Defense Production Act and directed the Secretary of Agriculture to ensure that they "continue operations consistent with the guidance for their operations jointly issued by the CDC and OSHA"; the Department of Agriculture announced its implementation the same day.99 OSHA cited JBS Greeley and Smithfield Sioux Falls in September 2020 for failing to protect employees, issued its National Emphasis Program on March 12, 2021 and revised it on July 7, 2021 to target, by NAICS code, animal slaughtering (311611), meat processed from carcasses (311612) and poultry processing (311615).100 The Department of Homeland Security and the Department of Labor governed the seasonal workforce by the H-2A rules of April 20, August 20 and December 18, 2020 and the H-2B rules of May 14, 2020 and May 25, 2021; the Department of State governed its admission by the consular suspension and resumption announcements; USCIS by its office closure and reopening conditions.101 The National Marine Fisheries Service waived observer coverage on fishing vessels by emergency rule from March 24, 2020 and extended the waiver authority to March 26, 2022.102 The Coast Guard's Marine Safety Information Bulletins, cited as the Coast Guard's own account of the maritime regime and not as orders, describe the conditions under which every vessel, terminal and cargo handling facility operated under the CDC's orders and the Captains of the Port's authority, and from March 22, 2021 they record that the conveyance order's face-covering requirement reached every "cargo handling facility."103
The State agricultural and occupational-safety regulators
Washington's Proclamation 20-57 prohibited any agricultural employer from operating after June 3, 2020 except in compliance with the Agriculture COVID-19 Requirements and governed every agricultural employer on those terms until its rescission by Proclamation 20-57.2 effective July 1, 2021 (Ex. SEC-20-031; Ex. WA-073); its Departments of Health and Labor and Industries governed the labor camp by emergency rule from May 18, 2020 into late September 2021 through the housing rules and their readoptions (Ex. SEC-20-032; Ex. SEC-20-033; Ex. AGY-ST-AGRICULTURE-PARKS-WILDLIFE-058 through Ex. AGY-ST-AGRICULTURE-PARKS-WILDLIFE-065; see item B-5 in the third quarter of 2021 below).104 Oregon OSHA governed the field, the crew bus and the labor camp by AO 2-2020 (May 11 to October 24, 2020) and by OAR 437-004-1115 (April 30 to October 24, 2021), and every workplace by OAR 437-001-0744 from November 16, 2020, permanently from May 4, 2021, with the face-covering requirement renewed from August 13, 2021 among that rule's exposure controls.105 Cal/OSHA's emergency standard governed every employer, every labor camp and every crew vehicle in California from November 30, 2020 and, as readopted June 17, 2021, through the third quarter of 2021.106 Virginia's Safety and Health Codes Board governed every employer in the Commonwealth from July 27, 2020, naming poultry, meat and seafood processing and agricultural and hand labor.107 Michigan's MDHHS governed every migrant camp, meat, poultry and egg processor and greenhouse with more than twenty workers by its testing order from August 2020 to July 1, 2021, and MIOSHA governed every workplace from October 14, 2020 to June 22, 2021.108 North Carolina's Executive Order 147 governed every farm, farm labor contractor and meat and poultry plant from June 26, 2020 to May 14, 2021.109 Kentucky's Healthy at Work requirements governed every manufacturer from May 11, 2020 to June 11, 2021; Minnesota's preparedness-plan orders governed every business from April 27, 2020 to the summer of 2021; New Jersey's Executive Orders 122 and 192 governed every manufacturer from April 10, 2020 to June 4, 2021; Pennsylvania's worker-safety order of April 15, 2020 governed every open business.110 New York's HERO Act, activated by the designation of September 6, 2021, governed every employer in the State, farmworkers included, in the third quarter of 2021.111 Alaska's Health Mandate 017 governed every independent commercial fishing vessel that delivered to a processor in the 2020 season.112 The State fairs of Oregon, Ohio, Minnesota, Iowa, Kansas and North Carolina and the Pennsylvania Farm Show were cancelled or made virtual for 2020, and Missouri cancelled its fair's public gate, carnival, grandstand and vendor operations while holding only its youth livestock shows, under the States' gathering prohibitions and by decisions of their State boards and commissions, closing the exhibitions and food-vendor markets they carry; the boards' announcements are cited as evidence of the cancellations and not as orders.113
The standing duties
Beneath the emergency orders lay a further layer that bound every farm, packing house and processing plant on every day of the six quarters whether or not any order named it: standing statutes commanding every person to prevent and control communicable disease and every employer to furnish a safe and healthful workplace, offense provisions punishing disobedience of health and emergency orders, sanitary codes enforced by summary closure, and liability shields protecting only the business that complied with governmental standards, guidance and protocols.114 Each is an order from an appropriate governmental authority on the Suspension Clause's own terms: a statute or rule that commands conduct is an order, and a legislature, a health department and a labor or occupational-safety agency are each such an authority (see The Statute). This subsection takes eight principal States (California, Texas, Ohio, Arizona, Florida, Indiana, New York and Washington, whose agricultural requirements the preceding subsection has set out); the fifty-one-jurisdiction treatment is at Nothing Was Voluntary.
The first layer is the orders themselves, which let a farm or a plant operate only on conditions, and the verbs are commands. Washington prohibited "any agricultural employer from continuing to operate beyond June 3, 2020, unless the employer complies with all provisions of the Agriculture COVID-19 Requirements" and provided that "No employer may operate ... unless the employer ... complies with all public health authority orders and directives," which its labor department made a rule.115 Texas commanded in GA-29, an order that required face coverings alone and one of the airborne-transmission controls the State laid on every indoor commercial premises beside GA-28's occupancy and closure regime, that every person "shall wear a face covering" inside a commercial entity, a command that reached every farm, plant and packing house in the State from July 3, 2020 to March 10, 2021; GA-28 and GA-32 ordered that "Every business establishment in Texas shall operate at no more than" 50 and then 75 percent of its listed occupancy, a cap that reached this industry's public-facing operations, the farm store, the market, the winery and the venue, while paragraph 1(a) of each order provided that there was "no occupancy limit" for the services listed in CISA's Essential Critical Infrastructure Workforce guidance, food and agriculture among them; the DSHS protocols those orders carried were written in "should" and are treated as recommendations made compulsory not by the orders but by the Labor Code's safe-workplace command, the general duty clause and, from June 14, 2021, the shield's compliance condition.116 California commanded that "[e]mployers shall establish, implement, and maintain an effective, written COVID-19 Prevention Program" in every workplace, labor camp and crew vehicle.117 Ohio ordered that "All businesses and operations shall continue to comply with Social Distancing Requirements"; Arizona that every employer "shall develop, establish and implement policies based on guidance from the CDC," the Department of Labor, OSHA and ADHS; Indiana that "all Hoosier employers shall develop a plan"; New York that reopened agriculture and manufacturing "must be operated subject to the guidance promulgated by the Department of Health."118 For every meat and poultry plant, Executive Order 13917 made the CDC-OSHA guidance, written in "should," the condition of continued operation.119
The second layer is standing law that commanded the same conduct before any order issued and after the orders lapsed. Texas states the duty on the person: "The state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease."120 Behind it stand control measures that "may be imposed on an individual, animal, place, or object," criminal penalties for refusing them, the Labor Code's command that "Each employer shall" provide "a place of employment that is reasonably safe and healthful for employees," and a sanitary code making an unsanitary food plant a public health nuisance.121 Ohio has commanded since 1974 that no one in charge of a place of trade "shall negligently fail to take reasonable measures to protect the public from exposure to the contagion," and commands every employer to furnish a place of employment "safe for the employees therein and for frequenters thereof."122 Indiana commands that "A person shall not institute, permit, or maintain any conditions that may transmit, generate, or promote disease" and commands conditions of work "free from recognized hazards," a duty its Department of Labor enforced against the CDC guidelines.123 California, Arizona, Florida, New York and Washington carry the same commands: a health code punishing disobedience of a control measure or emergency order; a safe-workplace statute commanding a place of employment "safe and healthful" or "free from recognized hazards"; and a sanitary code enforced by summary closure.124 Washington commands that "Members of the general public shall cooperate with ... Implementation of infection control measures," and New York's HERO Act commanded every employer to "establish an airborne infectious disease exposure prevention plan."125 Over all of them stands the general duty clause: "Each employer ... shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."126 OSHA said in March 2020 that the clause "requires employers to provide their employees with a workplace free from recognized hazards," cited under it against the CDC and OSHA guidance from April 2020, cited the largest meat processors in September 2020 and named this industry's slaughter and processing codes in its National Emphasis Program; the Service's own Office of Chief Counsel has recited the same requirement.127
The third layer is the liability shields, which fixed the standard of care as compliance. Texas protects a business unless the claimant proves it "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols"; Arizona presumes good faith only for a business that "adopted and implemented reasonable policies related to the public health pandemic"; Florida immunizes only a defendant that "made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance"; each reaches back to the first days of the emergency.128 Indiana set a gross-negligence floor without a compliance clause; Ohio set a recklessness floor and provided that a government order, recommendation or guideline "shall neither create nor be construed as creating a duty of care" in tort, leaving Ohio's compulsion in R.C. 3701.352, 3701.81(C) and 4101.11 and the orders; California, New York and Washington enacted no business shield and left the ordinary standard of care in force.129 In each the premise was the same: compliance with the governmental health standards is what a farm or a plant owed, and the business that spaced its line, screened its door, tested its crew and masked its shift was doing what the law required.
The counterparties
Customers
The restaurant, bar, hotel, school, college, stadium and institutional-kitchen orders of every State and large city, cited by region above and by jurisdiction in the fifty-State table, were orders on this industry's principal customers. Every State but South Dakota closed dine-in service by order between March 15 and April 3, 2020, the great majority by March 24, and South Dakota's cities closed theirs March 23-27; the reopening steps ran from 25 to 50 to 75 percent between May 2020 and the spring and summer of 2021, with a second closure in the winter of 2020-21 in the largest markets; the vaccination-proof orders of New York City (August 17, 2021), San Francisco (August 20, 2021) and New Orleans (August 16, 2021) conditioned the dining rooms and bars of those markets in the third quarter of 2021; and King County and Los Angeles County issued their vaccination-proof orders inside the quarter (September 16 and 17, 2021) with effective dates of October 25 and October 7, 2021.130 Every State closed its schools in March 2020 and most opened the 2020-21 year remote or hybrid by order, which closed the school-meal channel and reached the workforce.131 The fairs, farm shows, stock shows, livestock auctions, producer conventions and farmers markets through which this industry sells, buys and hires were closed, capped or moved online under the venue jurisdictions' gathering orders in 2020 and 2021; the Library's meetings collection lists them event by event, with the organizers' stated actions and the venue orders by exhibit ID.
The workforce and its institutions
The school and child-care closures of March 2020, the FFCRA leave mandates of April 1 to December 31, 2020, the remote and hybrid orders of 2020-21, the transit reductions and the federal conveyance order, the State workplace standards that made exclusion of exposed workers a legal duty, the 2021-22 school face-covering and quarantine orders (airborne-transmission and exposure controls on every school) of eighteen States and the District, and the vaccination mandates on health-care, school, child-care and public workers of July to September 2021 reached every worker in this industry as a parent, a commuter or a member of a household with a mandated worker.132 The consular, USCIS and border instruments reached the seasonal workforce directly (see the federal layer above).
Carriers, courts and public offices
The land-border notifications, the Title 42 order, the Coast Guard bulletins, the port rules and the conveyance order governed the industry's carriers; the judicial emergency orders of every State and the closure of clerks', recorders' and permitting offices governed its access to courts and public offices; USDA Service Centers went to phone appointments from March 23, 2020.133
The ecosystem
The mechanisms
An employer in this industry dealt in every quarter with counterparties whose commerce with it was limited by federal orders on borders, travel and supply, and the statute reaches that limitation in terms: "orders ... limiting commerce, travel, or group meetings." The United States has told the Ninth Circuit, in its answering brief in Stenson Tamaddon, LLC v. IRS, No. 25-4217 (9th Cir. Jan. 30, 2026) (Br. for Appellees), that an order addressed to someone other than the employer can suspend the employer:
a business may be suspended 'due to' a government order addressing a third party (such as an order that suspends the operations of a supplier of the business)
Br. for Appellees at 41
Six mechanisms operated.134 First, the supplier plants of Michigan, Pennsylvania, New York, New Jersey, Ohio, Indiana, Wisconsin, Washington and California were closed or confined to CISA-listed operations from March 19-24, 2020 until May and June 2020, and the plants of Ontario and Mexico were closed by orders of March 24 and March 30-31, 2020 and reopened only from June 1, 2020; a grower or processor that bought parts, packaging, chemicals or equipment from them received nothing while they were closed and less than it ordered for months after.135 Second, the ports: blank sailings of 21 percent of voyages in May 2020, the import surge from the fall of 2020, record volumes at Los Angeles in 2021 and the federal move to 24/7 port operations in October 2021 are the physical consequence of the Chinese, Vietnamese and Malaysian closures and of the demand shift the State orders produced, and every exporter of grain, meat, fruit and dairy waited longer and paid more for the same container.136 Third, PPE: from March 25, 2020 the accumulation of respirators, gloves and gowns above reasonable demand was a federal crime and from April 7, 2020 to June 30, 2021 their export was under federal allocation, in the same months in which every State order required plants and farms to buy them.137 Fourth, travel: no buyer, inspector, engineer or worker could enter from the listed countries in any quarter; no Canadian or Mexican could cross the land border except for essential travel through November 8, 2021; no United States employee could travel to Canada for a discretionary purpose until August 9, 2021, to the European Union until June 18, 2021 and again after August 30, 2021, to China from March 28, 2020 or to Japan from April 3, 2020.138 Fifth, the workforce: the suspension of immigrant entry from April 23, 2020 to February 24, 2021 and of H-2B entry from June 24, 2020 to March 31, 2021 removed the seasonal hires of nurseries, seafood processors and landscapers; the Title 42 order and the land-border rules governed the cross-border workforce of every border State.139 Sixth, the protein supply chain itself: the CDC's counts of April 27 and May 31, 2020, the Sioux Falls closure from April 12, 2020, the OSHA citations and the President's Defense Production Act order describe a supply chain that federal, State and local orders closed, reopened and conditioned in the second quarter of 2020, and every restaurant, grocer, distributor and institutional kitchen in every State bought from it.140
The foreign orders as facts and circumstances
Canada closed its border to discretionary travel by Order in Council from March 2020 and admitted fully vaccinated United States residents only from August 9, 2021; Ontario closed every business not on its Schedule 2 from 11:59 p.m. March 24, 2020; Mexico suspended all non-essential activities from March 30 to May 30, 2020; the European Union removed the United States from its permitted list on August 30, 2021; China closed its border to foreign nationals on March 28, 2020; Japan barred entry from April 3, 2020 and ran its fourth state of emergency from July 12 to September 30, 2021; Vietnam locked down Ho Chi Minh City from July 9 and sixteen southern provinces from July 18-19 through September 30, 2021; eighty countries imposed export prohibitions on medical goods by April 23, 2020.141 These are cited as the facts and circumstances in which the federal instruments operated, not as the orders on which the finding rests.