The governmental orders by layer
The orders that reached construction and the specialty trades came from every layer of government and every class of authority the Suspension Clause names: the President and the federal agencies; the governors, State health officers and State occupational-safety boards; the courts of the States and of the United States; the mayors, county judges, health officers and building commissioners of the largest metros; the licensing boards, recorders, motor-vehicle offices and consulates through which the industry hires, permits and records; the tribal and territorial governments; and the owners, suppliers, schools and transit agencies whose own orders limited the commerce on which the industry depends. This section inventories them by layer; the State table on this page tabulates them.
The universe
Between March 1 and May 31, 2020, forty-two States and territories issued mandatory stay-at-home orders covering 2,355 of the nation's 3,233 counties.12 On July 2, 2021, thirty-five States had emergency declarations in force and nine had statewide face-covering requirements; on September 21, 2021, twenty-five States had emergency declarations and eleven had statewide face-covering requirements.13 The Library indexes the instruments The COVID Project has retrieved and verified; its counts are counts of instruments indexed, not of the orders that reached any employer, and each exhibit is cited below for what it says. Every stay-at-home order in the country reached construction, by naming it as a permitted operation on conditions, as an operation confined to enumerated projects or as an operation ordered to cease, or by incorporating the federal critical-infrastructure list that names it; the State table on this page identifies, for each of the fifty-one jurisdictions, the order that fixed construction's status, the status it fixed (shutdown, limited, conditioned or no stay-home order) and the exhibit, and quotes the construction clause where the Library records it.
The federal layer
2020
The President proclaimed a national emergency on March 13, 2020.14 The Cybersecurity and Infrastructure Security Agency issued its Essential Critical Infrastructure Workforce memorandum on March 19, 2020 and Version 3.0 on April 17, 2020; the documents were guidance, and they mattered to this industry because the closure orders of Michigan, Louisiana, Oklahoma, Texas, Georgia and other States incorporated them by reference to define what construction could continue, so that the federal list became State law by incorporation.15 The Families First Coronavirus Response Act and the Department of Labor's rule compelled every employer of fewer than 500 employees to pay quarantined, ill and caregiving employees not to work from April 1 through December 31, 2020.16 The President invoked the Defense Production Act on March 18, 23 and 27 and April 28, 2020, designated scarce materials on March 25, and the Department of Health and Human Services adopted its allocation rule on April 7, 2020, binding every distributor of the designated materials, which included the respirators the construction trades wear.17 The President suspended the entry of immigrants from April 23, 2020 and of H-2B and other nonimmigrant workers from June 24, 2020, both continued to March 31, 2021; the Department of State suspended routine visa services worldwide on March 20, 2020; the Department of Homeland Security issued its H-2B temporary rule on May 14, 2020 and, by a policy announced March 20, 2020 and extended through the whole period, deferred the physical inspection of Form I-9 documents.18 The Federal Maritime Commission opened Fact Finding No. 29 on March 31, 2020 and issued its supplemental order on November 19, 2020; the Coast Guard's Marine Safety Information Bulletins announced the conditions imposed on every vessel arrival by Captain of the Port orders under 33 C.F.R. § 160.216 and, from 2021, by the CDC's conveyance order, and are cited as the announcements implementing those instruments; and the Port of Seattle suspended approximately twenty construction projects from April 9 to April 13, 2020 pending contractors' site safety plans.19 OSHA issued its construction alert, a guidance document, and its enforcement guidance of May 19, 2020 for recording COVID-19 cases, which governed every employer's injury and illness records through the period; its inspection record documents the citations issued on construction sites under the General Duty Clause and the respiratory-protection standard and is cited as facts and circumstances, not as an instrument.20
2021, first and second quarters
Executive Order 13991 (January 20, 2021) imposed workplace infection-prevention and exposure-control requirements, universal masking and physical distancing, on "on-site Federal contractors" and all persons in federal buildings; OMB Memorandum M-21-15 (January 24) capped every federal workplace at twenty-five percent of normal occupancy until June 10, 2021; Executive Order 13999 (January 21) directed OSHA to act.21 The CDC's conveyance order placed every transit commute under a federal face-covering requirement from February 1, 2021, an airborne-transmission control the TSA's security directives enforced, and the Federal Railroad Administration's Emergency Order No. 32 extended the same control to every railroad worksite from March 1, 2021.22 Proclamation 10143 (January 25) and Proclamation 10199 (May 4) continued the entry suspensions; Proclamation 10014 was revoked February 24 and Proclamation 10052 expired March 31, 2021.23 OSHA's National Emphasis Program of March 12, 2021 named construction (NAICS 236, 237 and 238) among its secondary target industries; the Healthcare Emergency Temporary Standard took effect June 21, 2021 for every employer, including a contractor, performing work in a covered health-care setting; and the Coast Guard announced on March 22, 2021 its enforcement of the CDC's face-covering requirement at every sea port and cargo handling facility through Captain of the Port orders.24 The Department of Homeland Security issued the FY 2021 H-2B supplemental-cap rule on May 25, 2021 and continued the land-border restrictions with Canada and Mexico on June 22, 2021.25
2021, third quarter
The third quarter of 2021 is stated in full below. Executive Order 13991 and the Safer Federal Workforce Task Force's Agency Model Safety Principles of July 29, 2021 governed every federal workplace and onsite contractor; OSHA's revised National Emphasis Program took effect July 7, 2021 with construction within inspection scope on complaint or referral; Executive Order 14042 (September 9), the Task Force's contractor guidance (September 24), the OMB determination (September 24) and the Task Force's contractors page (captured September 30) required every covered federal construction contractor and subcontractor at any tier to vaccinate its covered workforce by December 8, 2021 and to designate a coordinator; the Department of Transportation's Acquisition Directive 2021-02 (September 17) required attestation or testing of every on-site contractor employee at DOT facilities; the conveyance, security-directive, railroad, entry, border, Healthcare ETS and maritime instruments were in force on every day; and the federal district courts kept their courthouses under masking, screening and remote-proceeding orders.26
The fifty States
The industry's regime
Construction was the one industry the March 2020 orders treated two ways at once. Most States' stay-at-home orders listed construction among the "essential" or "critical" operations and left it running only on the order's terms: distancing, crew limits, screening, written plans and, everywhere, the rule that a site which could not comply had to close. Six of the largest construction markets and three principal metros stopped the work itself. The regime then ran in three stages: the shutdowns and limitations of March through May 2020; the mandatory site regimes with the force of law that replaced them, from May 2020 to their stepped expiry between May 29 and June 30, 2021; and the occupational-safety standards, exposure-prevention plans, Delta-wave face-covering orders and contractor vaccination orders that governed the third quarter of 2021. The face-covering orders are described in this analysis as what they were: workplace infection-prevention and exposure-control requirements imposed on every indoor workplace, which in most jurisdictions arrived with companion controls (employee screening, distancing and capacity limits, cleaning, exclusion of exposed workers, written plans) and which, where an order required face coverings alone, still placed every enclosed site and site office under an airborne-transmission control carrying a penalty. The State table on this page carries every jurisdiction with dates; this section states the pattern.
The shutdown States
Pennsylvania closed every business "not life sustaining" at 8:00 p.m. on March 19, 2020, marked every construction industry group "No," ordered every resident to stay home from April 1, 2020, and reopened construction statewide only on May 1, 2020 under headcount caps, gathering limits of ten and a Pandemic Safety Officer, with the Secretary of Health's worker-safety order of April 15, 2020 binding every business that remained open; the guidance was incorporated by reference in the Yellow Phase order of May 7, 2020 and superseded by the general mitigation orders, the Worker Safety Order and, from November 27, 2020, the Mitigation and Enforcement Orders held every site under occupancy, telework, screening and exclusion rules to 12:01 a.m. on May 31, 2021, the universal face-covering order (an airborne-transmission control that, with the Worker Safety Order's cleaning, distancing and screening rules, governed every open business) ran to June 28, 2021, Act 21's regulatory suspensions to September 30, 2021 and the school masking order from September 7, 2021 (an airborne-transmission control on the schools the workforce's children attend).27 New Jersey ceased "[t]he physical operations of all non-essential construction projects" at 8:00 p.m. on April 10, 2020, resumed them at 6:00 a.m. on May 18, 2020 under mandatory site policies, invalidated conflicting county and municipal restrictions on March 21, 2020, placed every worksite under Executive Order No. 192 from 6:00 a.m. on November 5, 2020, and, when Executive Order No. 192 expired as a free-standing order on July 4, 2021 under P.L. 2021, c. 103, § 1, carried its distancing, masking, sanitization and daily-health-check requirements through the third quarter of 2021 by Executive Order No. 242 ¶¶ 2-3 and 6 and Executive Order No. 243 ¶¶ 1-4, the order c. 103 § 1(14) preserved to January 1, 2022, while adding school face-covering orders (August 9, 2021; airborne-transmission controls reaching the workforce's households through their children's schools) and vaccination-or-testing rules for covered health-care and congregate-setting workers (Executive Order No. 252, August 6, 2021, effective September 7, 2021) and for preschool-through-grade-12 school workers (Executive Order No. 253, August 23, 2021, effective October 18, 2021).28 Michigan prohibited in-person work not necessary to sustain or protect life from 12:01 a.m. on March 24, 2020, kept the prohibition through Executive Orders 2020-42 and 2020-59, reopened construction at 12:01 a.m. on May 7, 2020 under site-specific supervisors, daily screening and choke-point controls, imposed remote work where feasible from June 1, 2020, carried its workplace safeguards through the Governor's orders to October 2, 2020 and then through MIOSHA's emergency rules from October 14, 2020 (extended April 13, amended May 24 and rescinded June 22, 2021) and the Department of Health and Human Services' gathering and face-covering orders to June 22, 2021.29
The limited States
New York confined construction to essential projects from March 27, 2020 under Empire State Development's guidance and the Governor's Executive Orders 202.6, 202.7 and 202.13, reopened it by region on May 15, 2020 and in New York City on June 8, 2020 under the NY Forward construction guidance, whose "minimum requirements" and Site Safety Plan bound every owner, operator and contractor until the industry guidance was lifted on June 15, 2021, and then required every private employer to adopt an airborne infectious disease exposure prevention plan under the HERO Act by August 5, 2021 and to activate it on September 6, 2021.30 Washington told the industry that "commercial and residential construction is not authorized under the Proclamation" on March 25, 2020, permitted "low-risk" work from April 24, 2020 under posted plans and six-foot distancing, phased the industry through its Safe Start and Healthy Washington frameworks to June 30, 2021, made every proclamation condition a workplace-safety violation under WAC 296-800-14035 from May 26, 2020 through the third quarter of 2021, and in August 2021 reinstated universal indoor face coverings, an airborne-transmission control enforced as a workplace-safety violation under that rule, and required vaccination of contractors working on site for State agencies.31 Vermont suspended in-person operations of all businesses at 5:00 p.m. on March 25, 2020, ordered work from home from March 23, permitted construction crews of two on April 20, five on April 27 and ten on May 4, 2020, and full operations on May 11, 2020 subject to mandatory training, quarantined every non-essential arrival for fourteen days from March 30, 2020 (Addendum 7, Ex. VT-012) and returning residents from May 6, 2020 (Addendum 13, Ex. SEC-09-035), and ended its general restrictions on June 15, 2021 while its courts kept masking and screening orders through the quarter.32
The Northeast otherwise
Massachusetts listed construction as essential under COVID-19 Order No. 13 (March 24, 2020) but permitted Boston, Cambridge and Somerville to pause it, then bound every construction site to the mandatory workplace standards of Order No. 33 (May 18, 2020) until May 29, 2021, kept face-covering requirements, airborne-transmission controls, in listed settings and reissued health orders from June 15, 2021, and imposed vaccination requirements on long-term-care and executive-branch workers in August 2021.33 Connecticut permitted construction under Executive Order 7H's in-person workforce reduction from March 23, 2020, bound it to the Safe Workplace Rules of Executive Order 7V (April 7, 2020) and to the face-covering orders of Executive Orders 7BB and 7NNN, airborne-transmission controls layered on those Rules' distancing and cleaning requirements, ended its general orders on May 20, 2021, and Executive Order No. 13A of August 5, 2021 authorized, and the Department of Public Health's order of August 7, 2021 required, universal masking in the listed settings, an airborne-transmission control, with vaccination-or-testing rules on State and covered workers.34 Rhode Island required face coverings of every employee in a workplace from April 18, 2020, the first of the workplace infection-prevention requirements it then codified in the Safe Activities regulation, and bound every covered entity to its Safe Activities regulation from May 8, 2020 to August 31, 2021, declared a new disaster emergency on August 19, 2021 and required vaccination of health-care workers from August 17, 2021.35 New Hampshire listed construction in Exhibit A to Emergency Order #17 (March 27, 2020) and bound it to the Universal Guidelines for All New Hampshire Employers from May 1, 2020 to May 7, 2021.36 Maine listed construction as essential on March 25, 2020 and bound it to the COVID-19 Prevention Checklists from May 1, 2020 to June 30, 2021, scheduled the transition of its remaining orders on June 30, 2021 and required vaccination of health-care workers from August 12, 2021.37
The South and the Mid-Atlantic
Delaware's Fourth Modification listed "o. CONSTRUCTION: Workers ... engaged in the construction of residential, non-residential structures, or infrastructure" and its Fifth Modification ordered every resident to shelter in place from March 24, 2020, with the shelter-in-place order running to June 1, 2020, the capacity and universal face-covering regime to May 21, 2021 and the emergency terminating at 12:01 a.m. on July 13, 2021, replaced the same day by a public health emergency under which the Department of Health and Social Services ordered hospital and long-term-care testing and vaccination in the third quarter.38 Maryland closed non-essential businesses on March 23, 2020 and ordered residents to stay home from March 30, 2020, permitting construction under the Office of Legal Counsel's guidance and delegating closure power over unsafe facilities to local health officers; its general orders ended July 1, 2021, and its courts and health department issued masking and vaccination orders in August 2021.39 The District of Columbia closed non-essential businesses on March 24, 2020 and ordered residents to stay home from April 1, 2020, permitting "Construction and Building Trades" under DC Health's construction-site guidance of June 25, 2020 and January 5, 2021, and reinstated universal indoor face coverings, an airborne-transmission control on every indoor workplace and public counter in the District, from 5:00 a.m. on July 31, 2021.40 Virginia closed listed businesses on March 24, 2020 and ordered residents to stay home from March 30, 2020, permitting construction, then bound "every employer, employee, and place of employment in the Commonwealth" to the Safety and Health Codes Board's Emergency Temporary Standard from July 27, 2020, which placed "indoor and outdoor construction settings" in its "medium" exposure classification, and to the Permanent Standard from January 27, 2021, amended September 8, 2021; the general orders ended May 28, 2021, the judicial emergency ran to October 13, 2021, and Executive Directive Eighteen required vaccination or testing of State workers from September 1, 2021.41 West Virginia's stay-at-home order of March 24, 2020 and its hotspot orders confined the industry to safer-at-home conditions until April 20, 2021; its face-covering orders, airborne-transmission controls on every indoor business, ran from July 7, 2020 (Ex. WV-041) through Executive Order 77-20 of November 14, 2020 (Ex. WV-051) to June 20, 2021 (Ex. WV-066).42 North Carolina listed "Construction and Critical Trades" in Executive Order No. 121 (March 30, 2020), re-tightened under Executive Order No. 181 (December 11, 2020), lifted its general restrictions on May 14, 2021 and re-imposed measures on July 29 and August 31, 2021.43 South Carolina's Home or Work Order of April 7, 2020 and its later emergency measures conditioned the industry through June 6, 2021; its trial courts kept mitigation orders through the third quarter and Columbia and Richland County imposed indoor face-covering orders, airborne-transmission controls on every indoor business, on August 5 and September 15, 2021.44 Georgia's shelter-in-place order of April 3, 2020 incorporated the CISA list and preempted stricter local orders; its gathering ban ended April 8, 2021, its mandatory sector duties ran to July 1, 2021 and its public health emergency to July 1, 2021, when the Economic Recovery State of Emergency began and, from August 19, 2021, dictated what local COVID-19 rules could be enforced against any business.45 Florida's Executive Order 20-91 (April 1, 2020; effective 12:01 a.m. April 3, 2020), § 1.B, incorporated Executive Order 20-89 and "its attachment which consists of a list propounded by Miami-Dade County in multiple orders," the list of Miami-Dade County Emergency Order 07-20 (March 19, 2020), which permitted "Open construction sites, irrespective of the type of building"; the State reopened by phases from May 4, 2020, suspended local fines on September 25, 2020, suspended every remaining local mandate on May 3, 2021 and voided them by statute on July 1, 2021, while the Supreme Court of Florida's protocols and the school-mask order, an airborne-transmission control on the schools the workforce's children attend, governed the third quarter.46 Kentucky closed non-life-sustaining businesses on March 26, 2020, reopened construction under the Healthy at Work Requirements for Construction from May 11, 2020 to June 11, 2021, re-imposed masks, as an airborne-transmission control, in every public and private preschool-through-grade-12 school and child-care setting from August 10, 2021 (Ex. KY-052) and by emergency regulation from August 12, 2021 (Exs. KY-053, KY-054), required face coverings, as airborne-transmission controls, in State office buildings from July 29, 2021 (the Governor's release of that date; a secondary source) and in its courts from August 9, 2021 (Exs. KY-058, KY-059).47 Tennessee's Executive Order No. 22 (March 31, 2020) listed "construction-related services ... housing construction" among essential infrastructure operations, reopened under Executive Order No. 30 and the Pledge construction standards from April 29 and May 29, 2020 (Exs. TN-013, TN-061), directives that ran to April 28, 2021 (Ex. TN-032), and kept a limited emergency to July 30, 2021 and court orders through the quarter.48 Alabama's stay-at-home order of April 4, 2020 listed "n. Construction and construction-related services," its Safer at Home orders imposed mandatory employer protections from April 30, 2020, its face-covering order, an airborne-transmission control on every indoor business, ran from July 16, 2020, its final health order expired May 31, 2021, and the Governor declared a new public health emergency on August 13, 2021 with a second judicial emergency from August 23.49 Mississippi's shelter-in-place order of April 3, 2020 listed "Construction and construction-related services"; its Safe Recovery orders and county face-covering mandates ran through March 3, 2021.50 Louisiana's stay-at-home order of March 23, 2020 incorporated the CISA workers; its phased proclamations ran without interruption through 2021 and re-imposed universal indoor face coverings, an airborne-transmission control on every indoor workplace, from August 4, 2021.51 Arkansas issued no stay-at-home order but bound "construction companies" to the protocols of Executive Order 20-13 from April 6, 2020, required face coverings from July 20, 2020 to March 31, 2021, quarantined close contacts from May 22, 2020 through 2021, and declared a new emergency on July 29, 2021.52 Oklahoma closed every business outside its essential-industries list to the public on April 1, 2020, re-tightened in November and December 2020, and its State emergency ended May 4, 2021 (Ex. OK-041), after which SB 658 (Ex. OK-043), Executive Order 2021-16 (Ex. OK-042), the Cherokee Nation's vaccination mandate (Ex. OK-090) and the City of Stillwater's hospital-capacity emergency of September 3 to 20, 2021 (Ex. OK-089) governed.53 Texas's Executive Order GA-14 (April 2, 2020) confined every person to essential services under CISA's list and preempted conflicting local orders, GA-18 kept "local recording and permitting offices" limited until May 1, 2020, GA-29 required face coverings in every business from July 3, 2020 to March 10, 2021, an airborne-transmission control enforced by fine, GA-32's automatic rollbacks reached eighteen trauma service areas in the winter, GA-34 ended the caps on March 10, 2021, and GA-38 (July 29, 2021, Ex. TX-036), as modified by GA-39 (August 25, 2021, Ex. TX-037), under a disaster declaration renewed by proclamation on August 29, 2021 (Ex. TX-038), governed the third quarter alongside the Supreme Court of Texas's Thirty-Ninth and Fortieth Emergency Orders.54
The Midwest otherwise
Ohio's Stay at Home Order of March 23, 2020 listed construction with telework directives, the Stay Safe Ohio order of April 30, 2020 reopened it under the Responsible RestartOhio construction protocols from May 4, 2020, the face-covering orders, airborne-transmission controls on every indoor business, ran from July 23, 2020 and the health orders to June 2, 2021, and the Columbus face-covering orders of September 10 and 14, 2021, occupational-health and airborne-transmission controls on high-density occupational settings, named construction workplaces by NAICS code.55 Illinois listed "public works construction" and the "Critical Trades" in Executive Order 2020-10 (March 21, 2020), imposed Tier 3 mitigation on November 20, 2020, reached Phase 5 on June 11, 2021, and re-imposed universal indoor face coverings on August 26 and 30, 2021 with employer duties from September 3, 2021.56 Indiana's Executive Order 20-08 (March 24, 2020) listed housing construction among essential infrastructure, its Roadmap of May 1, 2020 conditioned the reopening, its county-based measures ran from November 15, 2020, and its continuation orders and control measures ran through the third quarter of 2021.57 Wisconsin's Safer at Home order (March 25, 2020) permitted construction but directed that "optional or aesthetic construction should be avoided," Emergency Order #28 (April 24, 2020) prohibited optional exterior work by more than one person, the Supreme Court voided the order on May 13, 2020, the face-covering orders, airborne-transmission controls on every enclosed workplace, ran from August 1, 2020 to March 31, 2021, and the circuit courts' order of May 21, 2021 remained in force through the quarter.58 Minnesota's Executive Order 20-20 (March 27, 2020) listed "Construction and critical trades" and ordered that "[a]ll workers who can work from home must do so," the reopening ran through Executive Order 20-40 and its successors under mandatory preparedness plans, the four-week dial-back took effect November 20, 2020, the capacity limits ended May 28, 2021 and the peacetime emergency July 1, 2021, while the judicial branch's orders and the State's employee vaccination policy governed the third quarter.59 Missouri's Stay Home Missouri order of April 6, 2020 incorporated CISA and ran to June 15, 2020; the emergency under Executive Order 21-07 ran to August 27, 2021, when Executive Order 21-09 terminated it and declared a new state of emergency to December 31, 2021, and RSMo § 67.265 governed the local orders of the third quarter.60 Kansas's Executive Order 20-16 (March 30, 2020) confined the industry to the Kansas Essential Function Framework, its face-covering order ran from July 3, 2020 to March 31, 2021, and its quarantine mandates and adult-care testing orders ran through the third quarter.61 Iowa, Nebraska, North Dakota and South Dakota issued no stay-at-home order, but each closed dining rooms, bars and schools and capped gatherings by order in March and April 2020; Iowa required remote work from November 11, 2020 and face coverings from November 17, 2020 to February 7, 2021 and continued its disaster emergency through October 17, 2021; Nebraska's directed health measures ran to May 24, 2021 (Ex. NE-028, renewed to May 31 and ended May 24) and its emergency to June 30, 2021 (Ex. NE-067), with its hospital-capacity order from August 26, 2021 (Ex. NE-068); North Dakota's face-covering order ran from November 14, 2020 to January 18, 2021 and its travel quarantine from April 8, 2020; South Dakota's Executive Order 2020-12 bound every employer from April 6, 2020 and its judicial emergency and courthouse safety orders ran through the quarter.62
The West otherwise
California's Executive Order N-33-20 (March 19, 2020) and the State Public Health Officer's list permitted construction as essential critical infrastructure while the six Bay Area health officers confined it to essential projects from March 31, 2020 and reopened it on May 4, 2020 only under the Small and Large Construction Project Safety Protocols, carried forward as mandatory directives until June 15, 2021; Los Angeles bound every site to an exposure-control plan from March 31, 2020; the State's July 13 and August 28, 2020 orders (the latter effective August 31), its Limited and Regional Stay at Home Orders of November 21 and December 5, 2020, and the Blueprint tiers governed the industry's owners and offices to June 15, 2021; Cal/OSHA's standard bound every site from November 30, 2020, was readopted June 17, 2021 and remained in force through the quarter; and the State Public Health Officer's orders of July 26, August 5 and August 11, 2021 conditioned work inside health-care facilities and schools on vaccination or testing.63 Nevada's Directive 003 and its emergency regulation (March 20, 2020) permitted construction as an essential licensed business only under Nevada OSHA's distancing measures, its Stay at Home directive followed on April 1, 2020, its Statewide Pause capped every business at twenty-five percent from November 24, 2020, its general restrictions ended June 1, 2021, and Directives 047 and 048 imposed universal face coverings, an airborne-transmission control, in every indoor public setting in the counties of substantial and high transmission, including "office buildings, breakrooms, hallways, cafeterias, meeting rooms," from July 30 and August 4, 2021.64 Arizona's Executive Order 2020-12 (March 23, 2020) listed essential services including construction, its stay-home order ran from March 31 to May 15, 2020, its Executive Orders 2020-36 and 2021-06 preempted local business rules, and Executive Order 2021-16 (July 2, 2021) rescinded most COVID-19 executive orders effective July 1 and 9, 2021 while continuing Executive Orders 2020-12, 2021-05 and 2021-06 to September 29, 2021 (Ex. AZ-044); the Maricopa County Superior Court required face coverings, an airborne-transmission control, in every court facility from August 9, 2021 and the Navajo Nation kept its face-covering mandate, its curfew to August 4, 2021, its Yellow and Orange status orders and, to July 6, 2021, its road closures to visitors in force.65 New Mexico's public health orders conditioned every business on COVID-Safe Practices from March 24, 2020, kept them mandatory for "all businesses" on July 1, 2021, and re-imposed universal indoor face coverings by the Order of August 17, 2021, effective August 20 (Ex. NM-067; extended September 15, Ex. NM-070), and vaccination-or-testing on State employees, hospital workers and school workers in August and September 2021.66 Utah's Stay Safe, Stay Home directive ran from March 27, 2020, Summit and Salt Lake Counties made construction-site rules mandatory from March 23 and May 1, 2020, the statewide public health emergency ran from October 14, 2020, the Legislature ended the face-covering and restriction regimes in the spring of 2021, and the courts and school orders governed the third quarter.67 Colorado ordered every employer to cut in-person workforces by fifty percent from March 24, 2020 and every resident to stay home from March 26, 2020, listing construction as critical; its dial framework re-tightened on November 17, 2020; and Public Health Order 20-38, "Limited COVID-19 Restrictions," was amended and continued on July 1, August 1 and September 1, 2021 (the Seventh Amended order, issued September 30, 2021, took effect October 1, 2021, after the period), with the health-care vaccination rule of August 30, 2021 reaching employees and "Direct Contractors" of licensed facilities.68 Idaho's self-isolation order of March 25, 2020 and its Stay Healthy orders of November 14 and December 30, 2020 conditioned the industry until February 2, 2021 (Ex. ID-012); the Supreme Court required face coverings, an airborne-transmission control, in its courts from August 9, 2021 (Ex. ID-084) and the State activated crisis standards of care in September 2021 (Exs. ID-064, ID-072).69 Montana's stay-at-home directive of March 28, 2020 and its directives of November 20, 2020 conditioned the industry until January 15 and February 12, 2021 (Exs. MT-018, MT-020, MT-021), its emergency ran to June 30, 2021 (Ex. MT-022), Mont. Code Ann. § 49-2-312 (Ex. MT-072) bound every employer from May 7, 2021, and its emergency rule of August 31, 2021 followed.70 Wyoming issued no stay-at-home order but closed bars, restaurants and gathering places from March 19, 2020, required face coverings statewide, an airborne-transmission control on every indoor business, from December 9, 2020 to March 15, 2021 (Exs. WY-040, WY-048), removed every business restriction on March 16, 2021 (Exs. WY-050, WY-051), and kept university mask rules, airborne-transmission controls on campus workplaces, from August 16, 2021.71 Alaska's Health Mandate 011 (March 28, 2020) ordered residents to stay home and confined construction to critical infrastructure under the Essential Services list, its travel and intrastate-travel mandates quarantined arrivals and confined movement between communities, its public health emergency was re-declared May 1, 2021 with an addendum on September 21, 2021, and Juneau re-imposed face coverings, an airborne-transmission control on every indoor workplace in the borough, on July 30, 2021.72 Hawaii's Third Supplementary Proclamation (March 25, 2020) ordered residents to stay home and permitted essential infrastructure including housing construction, its traveler quarantine ran from March 26, 2020 through the period, the four counties kept stay-at-home, tier and face-covering orders in continuous force, and the State's proclamations of June 7 and August 5, 2021 and the counties' orders governed the third quarter.73
The winter re-tightening
Between October 14 and December 26, 2020, the orders that reached this industry's owners, offices and supply tightened again, the new face-covering orders among them imposing airborne-transmission controls on every indoor workplace: MIOSHA's rules (October 14) and the Michigan gathering and face-covering orders (October 29 and November 18); Utah's temporary restrictions (November 9); Iowa's remote-work order (November 11); North Dakota's face-covering order (November 14); Idaho's Stay Healthy order (November 14); Washington's rollback (November 17); Colorado's dial (November 17); Oregon's freeze (November 18); Illinois's Tier 3 (November 20); Minnesota's dial-back (November 20); Kentucky's winter restrictions (November 20); Montana's directive (November 20); California's Limited Stay at Home Order (November 21) and Regional Stay at Home Order (December 5); Nevada's Statewide Pause (November 24); Pennsylvania's telework mandate "[u]nless impossible" (November 27) and its December 12 closures; New Mexico's orders of November 16 and December 2; Wyoming's face-covering order (December 9); North Carolina's modified stay-at-home order (December 11); Mississippi's Safe Recovery re-tightening and county face-covering orders (December 11); Virginia's surge restrictions (December 14); Oklahoma's gathering cap (December 14); and Texas's automatic rollbacks in the trauma service areas listed by the Department of State Health Services.74 Every owner in a closed or capped sector, every office under a telework mandate and every building department under a closure order was a counterparty whose order reached the industry's projects.
The 2021 transition
Five States had ended their general business restrictions in 2020: South Dakota on April 28, 2020 (Ex. SD-017), Wisconsin on May 13, 2020, when its Supreme Court voided the Safer at Home order (Ex. WI-007), Kansas on May 26, 2020 as to business restrictions (Ex. KS-023), Missouri on June 15, 2020 (Ex. MO-007) and Florida on September 25, 2020 (Ex. FL-047). The others ended in steps through 2021: North Dakota January 18 (Ex. ND-066); Idaho February 2 (Ex. ID-012); Iowa February 7 (Ex. IA-035); Montana February 12 (Ex. MT-021); Arkansas February 26 (business directives converted to guidance, Ex. AR-014) and March 31 (face coverings, Ex. AR-060); South Carolina March 1 and 5 (Exs. SC-032, SC-033), with its emergency to June 6 (Exs. SC-035, SC-036); Mississippi March 3 (Ex. MS-051); Texas March 10 (Ex. TX-029); Oklahoma March 12 (Ex. OK-039), with its emergency to May 4 (Ex. OK-041); Wyoming March 15 and 16 (Exs. WY-048, WY-050, WY-051); Arizona March 25 (Ex. AZ-037); Kansas March 31 (every remaining executive order, including the face-covering order, revoked by SB 40, Ex. KS-040); Indiana April 6 (Ex. IN-059); Georgia April 8 (gathering ban and shelter-in-place, Ex. GA-034) and July 1 (mandatory sector duties and public health emergency, Exs. GA-039, GA-040); Utah April 10 (face coverings) and May 4 (remaining restrictions) (Exs. UT-040, UT-043); Colorado April 16 (Ex. CO-051); West Virginia April 20 (Ex. WV-063); Tennessee April 28 (Ex. TN-032); New Hampshire May 7 (Ex. NH-038); North Carolina May 14 (Ex. NC-029); Connecticut May 20 (Ex. CT-046); the District of Columbia May 21 (Ex. DC-073); Rhode Island May 21 and July 6 (Exs. RI-040, RI-047); Delaware May 21 (Exs. DE-037, DE-038), with setting-specific rules to July 13 (Ex. DE-040); Nebraska May 24 (directed health measures, Ex. NE-028), with its emergency to June 30 (Ex. NE-067); Louisiana May 26 (Ex. LA-032); Virginia May 28 (Ex. VA-017) and Minnesota May 28 (Ex. MN-038); Massachusetts May 29 (Ex. MA-048); Alabama May 31 (Ex. AL-051) and Pennsylvania May 31 (Exs. PA-035, PA-036); Nevada June 1 (Ex. NV-074); Ohio June 2 (rescission of the health orders, Ex. OH-048); New Jersey June 4 (Exs. NJ-052, NJ-053), with Executive Order No. 192's worksite requirements carried by Executive Orders Nos. 242 and 243; Kentucky June 11 (Ex. KY-049) and Illinois June 11 (Ex. IL-037); California June 15 (Exs. CA-027, CA-029), New York June 15 (guidance) and June 25 (executive orders) (Ex. NY-049) and Vermont June 15 (Ex. VT-044); Michigan June 22 (Ex. MI-076); Oregon June 30 (Ex. OR-043), Washington June 30 (Exs. WA-065, WA-072) and Maine June 30 (Ex. ME-060); Maryland July 1 (Ex. MD-030); New Mexico July 1 (with COVID-Safe Practices continued, Ex. NM-060); and Hawaii and the Navajo Nation not at all before September 30, 2021 (Exs. HI-023, AZ-082).75 The State table on this page states each date with its exhibit. What remained in force after each transition, and what was re-imposed in July, August and September 2021, is the subject of the six quarters.
The preemption States
Texas (GA-14, GA-34 and GA-38), Georgia (the orders of April 2 and June 29, 2020, the face-covering suspension order of July 15, 2020 and the order of August 19, 2021), Florida (Executive Order 20-244, Executive Order 21-102 and SB 2006), Arizona (Executive Orders 2020-36 and 2021-06) and New Jersey (Executive Order No. 108) barred or invalidated stricter local rules in whole or in part; Massachusetts and California permitted their cities and counties to go beyond the State floor, and Pennsylvania's guidance told contractors that "Local political units may elect to impose more stringent requirements."76 In the preemption States the 2021 quarters were carried by the States' own courts (the Supreme Court of Texas's emergency orders; the Supreme Court of Florida's protocols; the Maricopa County Superior Court's orders), by the States' own emergency declarations and school orders (GA-38 and its renewal; Florida's Executive Order 21-175; Georgia's Economic Recovery State of Emergency), by the counties' screening and facility orders that survived (Harris County; Bexar County; Dallas County), and by the federal layer, which applied in every one of them.77
The largest metros
The construction moratoria and site orders of 2020
Boston paused non-essential construction from March 17, 2020, extended the pause "until further notice" on March 25, required a sworn COVID-19 safety affidavit from April 27 and restarted in categories on May 5, 18 and 26, 2020; Cambridge issued mandatory construction guidelines on April 2 and an amended emergency construction order on June 22, 2020; Somerville's emergency order of March 20, 2020 reached construction (Ex. MET-BOS-050), the city ceased all non-emergency construction by March 27, 2020 and restarted it in phases from May 18 and June 1, 2020 (Ex. MET-BOS-054); and Nantucket's Emergency Order No. 1 of March 20, 2020, reaffirmed by its supplemental order of March 30, 2020, suspended construction and commercial landscaping on the island (Ex. MET-BOS-122).78 New York City's Department of Buildings suspended all work on non-essential construction and demolition and published its enforcement guidance on April 15, 2020; non-essential construction resumed June 8, 2020; the City required telework and a one-hundred-percent reduction of in-person workforces from March 20 and 25, 2020.79 Philadelphia prohibited the operation of businesses other than those on its essential list from 8:00 a.m. on March 23, 2020 and authorized construction to resume only from 7:00 a.m. on May 1, 2020 under a Site Safety Manager and the terms of its Construction Authorization, amended May 15 and 26, 2020.80 The six Bay Area health officers confined construction to essential projects from 11:59 p.m. on March 31, 2020 (San Francisco Order No. C19-07b and the Contra Costa and Marin orders of the same date) and reopened it from May 4, 2020 only under Appendix B's construction protocols with a COVID-19 supervisor on every site "at all times."81 Los Angeles County's Safer at Home orders of March 21 and April 10, 2020 confined the industry to essential infrastructure with distancing protocols, and the Los Angeles Department of Building and Safety's Announcement No. 5 of March 31, 2020 conditioned every permit on an exposure-control plan enforced by "withheld inspections or shutting down the construction site."82 Dallas County's Stay Home Stay Safe orders of March 22 and 29, 2020 carried the "Rules for the Construction Industry" of March 29, 2020; Harris County issued its construction-workforce order on May 21, 2020; Bexar County's declaration of March 24, 2020 exempted construction on distancing conditions.83 In the Detroit metro, Oakland and Wayne Counties ordered screening and distancing at every open business on March 25 and 26, 2020, Detroit's health department ordered daily screening on October 9, 2020, and Wayne County incorporated the MIOSHA rules on October 16, 2020.84 Everett suspended its residents' movement from noon on March 23, 2020, King County's health officer barred gatherings from March 16, 2020 and the Port of Seattle suspended its construction projects on April 9, 2020.85 Summit County, Utah imposed mandatory construction-site rules (no shared tools, no lunch-area gatherings, daily symptom exclusion) on March 23, 2020, and Summit and Salt Lake Counties made the construction protocols mandatory from May 1, 2020.86 Minneapolis stopped accepting land-use applications from March 17 to April 10, 2020; Cleveland closed its permit, zoning and plan-review counters on March 16, 2020; Fairfax County closed its government buildings on March 27, 2020; Anne Arundel County suspended community-meeting prerequisites for development applications on April 14, 2020; Kansas City suspended in-person zoning meetings on April 5, 2020; Louisville moved permit applications to drop-off and portal on March 17, 2020; Seminole County tolled permit deadlines from March 18, 2020 and modified inspections from March 24, 2020; Jefferson Parish closed its permit offices to the public from March 23 to May 18, 2020; Palm Springs issued an essential-construction order on April 25, 2020.87 Chicago's shelter-in-place order of March 18, 2020, Atlanta's stay-at-home order of March 24, 2020, the Fulton County Board of Health's administrative order of March 31, 2020, DeKalb County's Executive Order 20-001 (with its directive to every employer to enable remote work), Milwaukee's stay-at-home order of March 25, 2020, Nashville's Safer at Home order of March 23, 2020, Charlotte-Mecklenburg's proclamation of March 26, 2020, Hillsborough County's order of March 27, 2020, Honolulu's stay-at-home order of March 23, 2020 and Maui's rules of March 22, 2020 each confined construction to essential work on distancing conditions.88
The Delta-wave reinstatements of 2021
The Delta-wave orders of July through September 2021 re-imposed workplace infection-prevention and exposure-control requirements on every enclosed site, site office and permit counter in the jurisdictions that issued them; universal indoor face coverings were the command common to all of them, and several added employee screening (Harris County), proof of vaccination for indoor patrons (San Francisco; New York City) or vaccination of covered workers (Denver; New York City; Philadelphia's health-care workers). Los Angeles County required face coverings in every indoor space from 11:59 p.m. on July 17, 2021 and revised the order on August 19, 2021; Clark County ordered a face covering of every employee of every indoor public-facing business from July 22, 2021 and the Eighth Judicial District Court required them in every court facility from July 19; St. Louis required them of every individual from July 26, 2021; Sacramento County in every indoor space from July 30, 2021; the District of Columbia from July 31; Atlanta from July 28; the eight Bay Area jurisdictions from August 3, and San Francisco required proof of vaccination for indoor patrons from August 20, 2021; Kansas City from August 2; Denver adopted the State's limited restrictions on July 1 and August 2 and required vaccination of covered workers from August 2, 2021; Montgomery County, Maryland from August 7; Prince George's County from August 4; Baltimore from August 10; Dallas County from August 11; Bexar County from August 11; Philadelphia from August 12, with health-care vaccination from August 16; Harris County's screening and mask orders from August 17; New York City's Key to NYC from August 17, its health-worker orders from July 21 and August 10, and its order that every Department of Education staff member and contractor be vaccinated by September 27, 2021; Chicago from August 20 and Cook County from August 23; Savannah's emergency orders of July 26 and August 24, 2021; Boston from August 27; Detroit's orders of August 24 and 27; King County's face-covering orders from September 7 and vaccination verification from September 16; Minneapolis's and Saint Paul's emergency continuations and City-property face-covering order of August 3; Honolulu's Safe O'ahu Response Plan from September 22; the Maricopa County Superior Court's face-covering order from August 9; the Fifth Judicial District's (Pittsburgh) face-covering order from August 10; the Marion County courts' order from August 16; and Columbus's Executive Order 2021-01 of September 10, 2021 and Ordinance 2388-2021 (September 13, 2021; effective 8:00 a.m. September 14, 2021), § 1.d of which required face coverings "[i]n certain high-density occupational settings where social distancing is difficult, such as manufacturing, construction, and agriculture," including "businesses or operations within North American Industry Classification System (NAICS) sectors 311 to 339 (manufacturing), 236 to 238 (construction), and 111, 112, 1151, and 1152 (agriculture)."89
The sector regulators
The State occupational-safety agencies
Seven State-plan agencies bound every construction site in their States by standards carrying civil penalties. Virginia's Safety and Health Codes Board adopted the first COVID-19 emergency temporary standard in the country on July 15, 2020, effective July 27, 2020, for "every employer, employee, and place of employment in the Commonwealth," replaced it with the Permanent Standard on January 27, 2021 and amended that standard on September 8, 2021; the standard was revoked only on March 23, 2022.90 California's Occupational Safety and Health Standards Board adopted the COVID-19 Prevention Emergency Temporary Standards on November 19, 2020, operative November 30, 2020, readopted them with amendments operative June 17, 2021 and refiled them on January 5, 2022, operative January 14, 2022; the standards require a written program, face coverings, exclusion pay for cases and close contacts and outbreak testing at every site and in every crew vehicle.91 Oregon OSHA adopted OAR 437-001-0744 for "all employees working in places of employment" on November 6, 2020, effective November 16, 2020, made it permanent on May 4, 2021, amended it June 30 and September 14, 2021 (adding medical removal protection benefits and enforcement of the Oregon Health Authority's face-covering rules, effective September 16, 2021), and the Health Authority's indoor face-covering rule of August 13, 2021 named "construction sites."92 Washington's Department of Labor and Industries adopted WAC 296-800-14035 on May 26, 2020, making every prohibition and condition of the Governor's proclamations a workplace-safety violation, and readopted it without interruption on July 2, November 16 and December 16, 2020, January 12, May 14 and 24, July 6, August 23 and September 20, 2021, adding the outbreak-reporting rule WAC 296-62-600 on August 10, 2021.93 MIOSHA's emergency rules bound every Michigan site from October 14, 2020 to June 22, 2021, with construction-specific requirements, a daily entry screen, a designated coordinator and remote work where feasible.94 Nevada OSHA restated each Directive's mandatory measures for every business from April 23, 2020, published its enforcement process, ran an emphasis program from April 9, 2021 and adopted the Healthcare ETS in Nevada from July 1, 2021.95 New Mexico's Environment Department required every employer to report each positive case within four hours from August 5, 2020, permanently from January 26, 2021.96
Federal OSHA
The National Emphasis Program of March 12, 2021 listed construction (NAICS 236, 237 and 238) among the secondary target industries in its Appendix B; the revised program of July 7, 2021 kept construction within inspection scope on complaint or referral; the Healthcare ETS of June 21, 2021 bound every contractor working in a covered health-care setting; the agency's recording guidance governed every site's injury and illness records; and its inspection record, a data compilation cited as facts and circumstances and not as an instrument, documents the citations issued.97
Licensing boards and examinations
The California Contractors State License Board announced the closure of every public counter and test center on March 20, 2020, in the week Executive Order N-33-20 took effect (Ex. CA-002), reopened in phases from May 2020 and announced the closure of all seven test centers and its counters again on December 7, 2020 into January 2021, under the Regional Stay at Home Order (Ex. CA-020); the Nevada State Contractors Board announced the discontinuance of jobsite visits on March 17 and the closure of its offices at noon on March 18, 2020 as Directive 003 closed the State's non-essential businesses (Ex. NV-004); those announcements are cited as the boards' implementation of the State orders, not as orders; PSI Services LLC, the boards' examination vendor ("PSI"), closed its owned test centers from March 17, 2020; Virginia's Department of Professional and Occupational Regulation ("DPOR") extended every credential and every examination-eligibility period from March 18 and 19, 2020 to July 30, 2021; Florida's Department of Business and Professional Regulation announced on March 20, 2020 the tolling of permit deadlines that Fla. Stat. § 252.363 effects for the duration of a declared emergency, appointment-only counters and remote inspections; California's Department of Consumer Affairs ("DCA") waived license-renewal requirements for Division 3 licensees, including contractors, by successive orders from April 2020 through DCA-21-195 of September 28, 2021.98
Building departments, recorders and notaries
The permit and inspection counters named in the metro section closed or went remote in March 2020; the county recorders of Cook, Maricopa, San Diego, Dallas, Tarrant, Mecklenburg and Montgomery (Pennsylvania) Counties closed their counters or limited them to title companies and e-recording under the stay-at-home and closure orders of their States, as the recorders' own service announcements record (the announcements are cited as context for those orders, not as orders); Texas confined "local recording and permitting offices" to limited operation until May 1, 2020; Michigan closed its registers of deeds until May 7, 2020; and the emergency remote-notarization regimes that construction lending, lien waivers and closings then required ran in most States through the second quarter of 2021 and in Massachusetts, Texas, Vermont, Maryland, Mississippi, Georgia, Washington and New Jersey into the third quarter.99
Motor-vehicle offices and consulates
Commercial driver licenses, learner's permits and medical certificates ran on rolling emergency extensions from March 2020 through November 30, 2021 in California (the Department of Motor Vehicles' announcement of September 2, 2021 records the last extension), with skills tests cancelled in Wisconsin and California and offices closed or appointment-only in at least twenty States in March 2020, as the agencies' service announcements record; the Department of State suspended routine visa services worldwide on March 20, 2020 and resumed them post by post from July 15, 2020; the Form I-9 physical-inspection deferral ran from March 20, 2020 through the period.100
The counterparties
Owners
The industry's owners were under orders in every quarter: the closure, capacity, face-covering and vaccination orders on restaurants, hotels, retailers, offices, fitness operators, schools, hospitals and universities catalogued in the other industry analyses on this site; the public owners' own suspensions (the New York City Housing Authority's suspension of "scheduled repairs for non-emergency work, Annual Inspections, and other Skilled Trades or Maintenance Work in occupied units" from March 16, 2020; the Javits Center's two-month expansion pause and conversion to a medical station and vaccination center; the Port of Seattle's construction suspension; McCormick Place "closed since March of 2020" until July 2021, as its operator's reopening announcement records); and the federal owners' telework, occupancy, attestation and vaccination orders.101
Schools, child care, transit, courts and health care
The school-closure orders of the spring of 2020 and the remote openings of the fall of 2020 kept the workforce's children at home; the child-care closures confined care to essential workers' children; the transit agencies cut service, capped riders and required face coverings, and the federal conveyance order placed every commute under a face-covering requirement, an airborne-transmission control the TSA enforced, from February 1, 2021; the courts closed, suspended filings and converted to remote proceedings, reaching every lien, payment and contract dispute; and the health-care-worker vaccination orders of California, New York, Oregon, Colorado, Maine, Rhode Island, New Jersey, Maryland and Delaware, with the Healthcare ETS, conditioned every trade's work inside a hospital or nursing home from July 2021.102
The ecosystem
The mechanisms
Six mechanisms carried orders addressed to others into this industry's operation, each an order in its own right. Supply chain and borders: the manufacturing closures of Michigan, Pennsylvania, New York, New Jersey, Washington, California, Illinois, Ohio, Massachusetts, Indiana and Wisconsin closed the plants and yards that make and stock the industry's materials; the Defense Production Act orders allocated respirators and other scarce materials; the land-border notifications, the Captain of the Port orders and CDC order the Coast Guard's bulletins announced, and the Federal Maritime Commission's orders conditioned every import; the price rules of Minnesota, New York, Colorado and Massachusetts bound every seller in the chain of distribution; and the Census Bureau found in July 2021 that 58.5 percent of construction small businesses reported domestic supplier delays, with the Federal Reserve's Beige Books of April 2020, July 2021 and September 2021 and its Monetary Policy Report of July 9, 2021 recording the shortages of lumber, steel and building materials.103 Workforce, schools and child care: the FFCRA leave mandate, the school closures, the child-care closures, the quarantine orders and the State paid-leave mandates removed crew members from sites by law.104 Travel and gatherings: the interstate and intrastate quarantines of Vermont, Hawaii, Alaska, North Dakota, Kansas and the tribal nations, and the gathering caps of every State, confined the crews and the meetings.105 The industry's trade shows, conventions, home shows and recurring gatherings that those caps and quarantines cancelled, postponed, moved online or conditioned in each year are listed, with the venue orders and the organizers' own notices, in the Library's meetings collection. Courts and public offices: the orders of the courts, clerks and recorders converted or closed the venues through which liens are perfected, permits issued and disputes resolved.106 Transit: the conveyance order, the security directives, the railroad order and the transit agencies' rules conditioned every commute.107 Health care as counterparty: the health-care-worker vaccination orders and the Healthcare ETS conditioned every trade's entry into a hospital or nursing home from July 2021.108
Foreign orders
The national and provincial lockdowns of Canada (including Ontario's closure of non-essential construction in April 2020), Mexico's suspension of non-essential activities in April and May 2020, and the lockdowns of China, Italy, India and other producing countries closed the sawmills, steel mills, fixture and equipment plants and component suppliers on which the industry's imports depend; they are stated as facts and circumstances by category, not as the orders of an appropriate governmental authority within the meaning of the clause, and the domestic instruments above carry the proof. The Library holds the foreign instruments as context only.
The standing duties
Beneath the emergency orders lay a further layer that bound every contractor in every State on every day of the six quarters whether or not any order named the trade: the standing statutes that commanded every person to prevent and control communicable disease and every employer to furnish a safe and healthful place of employment, with the offenses that punished disobedience of health and emergency orders, and the liability shields of 2020 and 2021 that protected only the complying business. 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, a labor department and an occupational-safety agency are each an appropriate governmental authority (the statute). The layer is stated here for eight principal States; every State's standing duties are collected at Nothing was voluntary.
The first layer is the orders' own conditions of operating, and for this industry the verbs are commands. Pennsylvania's construction guidance provided that every authorized construction business "must adhere to requirements of this guidance," made mandatory by the Yellow Phase Order's "provided that the businesses fully comply with all substantive aspects of" the Secretary's safety orders.109 New Jersey's Executive Order No. 142 permitted resumption only for businesses that "must adopt policies" the order dictated, and Executive Order No. 192 provided that every worksite "is required to abide by the following requirements, at minimum."110 Michigan's Executive Order 2020-91 and the MIOSHA emergency rules that succeeded it said "must, at a minimum" and "[t]he employer shall."111 Washington's Proclamation 20-25.6 provided that "[n]o employer may operate ... unless the employer ... complies with all public health authority orders and directives," and its Phase 1 construction requirements ran on pain of "the job being shut down."112 New York's Executive Order 202.31 provided that reopened businesses "must be operated subject to the guidance promulgated by the Department of Health,"113 and California's Cal/OSHA standard that "[e]mployers shall establish, implement, and maintain an effective, written COVID-19 Prevention Program."114 Texas's Executive Order GA-28 provided that "[e]very business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy"; the DSHS protocols the same orders incorporated with "should" are recommendations, compulsory only through the commands beside them and the statutes and shield below.115 Arizona's Executive Order 2020-36 provided that every business that "serves the public or is an employer shall develop, establish and implement policies based on guidance from the CDC, Department of Labor, Occupational Safety and Health Administration (OSHA) and ADHS."116
The second layer is the standing law that commanded the same conduct before any order issued. Texas states the duty on the person in the words Health and Safety Code section 81.002 has carried since 1989: "The state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease."117 Behind it stand the control measures of section 81.082, which "may be imposed on an individual, animal, place, or object," the offenses of sections 81.087 and 81.085(h) for disobeying them, Government Code section 418.173's fine of $1,000 and 180 days, and Labor Code section 411.103, under which "[e]ach employer shall" provide a place of employment "reasonably safe and healthful," with "methods of sanitation and hygiene."118 Every other principal State had the same three commands, disease-control, order-violation and workplace-safety: California's Labor Code section 6400 ("safe and healthful") and Government Code section 8665;119 Arizona's A.R.S. § 23-403 ("free from recognized hazards") and § 26-317, applied by arrest in April 2020;120 New Jersey's N.J.S.A. 34:6A-3 ("reasonably safe and healthful," with "methods of sanitation and hygiene") and App. A:9-49;121 New York's Labor Law § 200 ("reasonable and adequate protection") and, from July 2021, § 218-b ("each employer shall establish an airborne infectious disease exposure prevention plan");122 Pennsylvania's General Safety Law ("reasonable and adequate protection") and 71 P.S. § 1409;123 Washington's RCW 49.17.060 ("free from recognized hazards") and WAC 296-800-14035, which made every proclamation condition a workplace-safety rule;124 and Michigan's MCL 408.1011 ("free from recognized hazards") and the Public Health Code's penalties.125 Over all eight lay the general duty clause of section 5(a)(1) of the Occupational Safety and Health Act, a place of employment "free from recognized hazards that are causing or are likely to cause death or serious physical harm," enforced against SARS-CoV-2 by citation from September 2020 and by a National Emphasis Program of March 12, 2021 that named construction.126
The third layer is the liability shields, and their condition is compliance. Texas protects a business from an exposure claim unless the claimant proves it "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease," for actions from March 13, 2020;127 Arizona presumes good faith only for a business that "adopted and implemented reasonable policies related to the public health pandemic," retroactive to March 10, 2020;128 Michigan immunizes "[a] person who acts in compliance with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19."129 California, Washington and Pennsylvania enacted no business shield: California presumes negligence from the violation of a statute or regulation, Washington takes the breach as evidence of it, and Pennsylvania's Governor vetoed the shield bill because it would have protected a business that did not rigorously comply with public health orders.130 New Jersey and New York shielded health-care providers only.131 In each group the legislature's premise is the same: compliance with the governmental health standards was what a business owed.
The courts treated the regime as law binding businesses; the Supreme Court of California described the San Francisco health order as one that "mandated specific health and safety precautions to prevent the spread of COVID-19 at construction jobsites."132 A contractor that capped its crew, screened its gate, spaced its framing line and sent its estimators home in that environment was not choosing; it was complying, and the command it complied with is an order under the Suspension Clause. The answers section applies the point to Q&A-14.