The six quarters
In each of the six quarters from the second quarter of 2020 through the third quarter of 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19 were in force on the quarter's first and last day, reached this industry's functions, and caused a temporary delay, interruption or termination of a more than nominal portion of the operations of construction and specialty trade employers throughout the United States. Each quarter is stated on the instruments in force on its first day, its last day and in between; the third quarter of 2021 is written as a self-contained proof.
The second quarter of 2020
On April 1, 2020 construction was ordered to cease in Pennsylvania (from 8:00 p.m. March 19), in Michigan (from 12:01 a.m. March 24), in Boston (from March 17, with sites secured by March 23), and in Washington ("not authorized under the Proclamation," March 25); it was confined to enumerated essential projects in New York (from March 27), in Vermont (from 5:00 p.m. March 25) and in the six Bay Area counties (from 11:59 p.m. March 31); and from 8:00 p.m. on April 10 New Jersey ordered that "[t]he physical operations of all non-essential construction projects shall cease."133 New York City's Department of Buildings suspended all non-essential construction and demolition work and published its enforcement guidance on April 15; Philadelphia prohibited the operation of businesses outside its essential list from March 23 and permitted construction only from May 1 under a Site Safety Manager; the Port of Seattle suspended approximately twenty projects from April 9 to 13.134 In every other State construction ran on the order's terms: Minnesota's "Construction and critical trades" under a stay-at-home order that required every worker who could work from home to do so; Illinois's "public works construction" and "Critical Trades" under Social Distancing Requirements; Wisconsin's construction with "optional or aesthetic construction" to be avoided and, from April 24, optional exterior work by more than one person prohibited; Tennessee's "construction-related services" and "housing construction"; Delaware's "o. CONSTRUCTION"; Alabama's "n. Construction and construction-related services" from April 4; Mississippi's shelter in place from April 3; Texas's essential services under CISA from April 2; Colorado's critical businesses under a fifty percent in-person reduction from March 24 and a stay-at-home order from March 26; Nevada's essential licensed businesses under Nevada OSHA's distancing measures from March 20; Louisiana, Oklahoma, Missouri and Georgia under CISA's list by incorporation; Hawaii's essential infrastructure under a stay-at-home order from March 25; Alaska's critical infrastructure under Health Mandate 011 from March 28; and the District of Columbia's "Construction and Building Trades" under a stay-at-home order from April 1.135 Building departments, planning boards and recorders closed their counters in Cleveland (March 16), Louisville (March 17), Minneapolis (land-use applications, March 17 to April 10), Fairfax County (March 27), Cook County, Maricopa County (March 31), San Diego County (March 23), Dallas County (March 24), Tarrant County (March 23), Mecklenburg County, Jefferson Parish (March 23 to May 18) and Texas generally (recording and permitting offices limited until May 1); Seminole County tolled permit deadlines from March 18 and modified inspections from March 24; Anne Arundel County and Kansas City suspended in-person development and zoning meetings on April 14 and April 5.136 The contractors' licensing boards of California and Nevada announced their closures on March 20 and 18; PSI closed its test centers on March 17; Virginia extended every credential and examination-eligibility period from March 18 and 19; Florida tolled permits under Fla. Stat. § 252.363.137 The Defense Production Act orders and the scarce-materials designation and allocation rule governed respirator supply from March 18 to April 7; the FFCRA leave mandate bound every employer of fewer than 500 from April 1; the President suspended immigrant entry from April 23; the Department of State suspended routine visa services from March 20; every State's courts suspended jury trials and most suspended non-essential filings; New York's courts accepted no papers except in essential matters from March 22.138 The industry's owners were closed: every restaurant, bar, gym, theater, salon and non-essential retailer in every stay-at-home State; every school; every hospital's elective procedures; every office outside the essential lists.139
The reopening steps within the quarter
The shutdowns ended in steps and were replaced, not lifted. Vermont permitted crews of two on April 20, five on April 27, ten on May 4 and full operations on May 11 subject to mandatory training.140 Washington permitted "low-risk" work on existing projects from April 24 only for tasks that did not require workers to be "closer than six-feet together," only under a posted plan, and on pain of "the job being shut down."141 Pennsylvania reopened construction statewide on May 1 under four-person residential caps, square-footage caps for enclosed commercial work, gatherings of ten and a Pandemic Safety Officer, with the Secretary of Health's worker-safety order of April 15 binding every open business.142 Philadelphia authorized construction from 7:00 a.m. May 1 under a Site Safety Manager.143 The Bay Area reopened all construction on May 4 only under Appendix B's protocols with a COVID-19 supervisor on every site "at all times."144 Boston restarted in categories on May 5, May 18 and May 26 under a sworn safety affidavit required of every site from April 27.145 Michigan resumed construction at 12:01 a.m. May 7 under Executive Order 2020-70's site-specific supervisors, daily screening and choke-point controls, and Executive Order 2020-97 (May 21) required a daily entry screen for "employees, contractors, suppliers, and any other individuals entering a worksite."146 Kentucky reopened under the Healthy at Work Requirements for Construction on May 11; Ohio under the Responsible RestartOhio construction protocols on May 4; Salt Lake and Summit Counties made the construction protocols mandatory from May 1; Tennessee published the Pledge construction guidance on May 29; Harris County issued its construction-workforce order on May 21.147 New York reopened construction in five upstate regions on May 15 and in New York City on June 8, only under the NY Forward construction guidance, whose "minimum requirements" and Site Safety Plan bound every owner, operator and contractor.148 New Jersey permitted non-essential construction from 6:00 a.m. May 18 only for businesses that "must adopt policies" the order dictated, including meetings of fewer than ten.149 Massachusetts bound every site to the mandatory workplace standards of Order No. 33 from May 18.150 Virginia's Executive Order 55 ran to June 10 and its Executive Order 53's closures to May 15 and beyond; Maryland's stay-at-home order ran to May 15; the District's to May 29; Hawaii's, Vermont's, Alaska's, North Dakota's and Kansas's travel quarantines confined every cross-border crew.151 On June 30, 2020 every one of the site regimes above was in force, and no State had returned construction to its February 2020 terms.
By function, the quarter's orders reached the operation as follows. JS: terminated in the shutdown States and metros for two to seven weeks; then capped, distanced, planned and screened everywhere. PM: counters closed or remote; inspections suspended or by affidavit. BD: gatherings capped at ten; public meetings remote; site visits under stay-at-home orders. SC: sawmills, wood product plants and lumber wholesalers closed in Pennsylvania; paint, flooring and garden departments closed in Michigan; manufacturing closed outside critical infrastructure in a dozen States; respirators allocated by federal order. SB: every trade under the same site orders; licensing boards closed. OW: every owner in a closed sector shut; public owners' projects suspended. HR: examinations cancelled; boards closed; visas suspended; H-2B entry suspended from June 24. OP: telework mandated in New York, New Jersey, Oregon, Minnesota, Colorado, Michigan and elsewhere. WF: confined at home; schools closed; FFCRA leave compelled; transit cut. CB: every customer industry under orders.152
During the calendar quarter beginning April 1, 2020 and ending June 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the construction shutdown and limitation orders of Pennsylvania, New Jersey, New York, Michigan, Washington, Vermont, Boston, Philadelphia, New York City and the Bay Area (Exs. SEC-09-007, SEC-09-002, NY-015, SEC-09-031, SEC-09-004, SEC-09-030, SEC-09-024, MET-PHL-003, MET-NYC-050, MET-SFO-002), the stay-at-home and essential-operations orders of every other State (Exs. MN-010, IL-005, WI-002, TN-007, DE-006, AL-013, TX-008, CO-012, CA-002, HI-004), the mandatory site regimes that replaced the shutdowns (Exs. SEC-09-008, SEC-09-003, SEC-09-033, SEC-09-005, SEC-09-029, SEC-09-017, SEC-09-040, SEC-09-025, MET-PHL-023, KY-066, SEC-11-030), the closures of building departments, recorders and licensing boards (Exs. MET-CLE-002, MET-MSP-004; the recorders' and boards' closures under the stay-at-home orders recorded as context at Ex. AGY-ST-DMV-SOS-RECORDERS-114 and Ex. AGY-ST-TRADE-BOARDS-016), the supply and workforce orders of the United States (Exs. FED-074, FED-075, FED-171, AGY-FED-LABOR-IMMIGRATION-007) and the owners' closure orders catalogued above, caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by closing the industry's sites in its largest markets, by conditioning every other site on caps, distancing, plans and screening, by closing the counters through which every project is permitted and recorded, by closing the industry's owners and suppliers and by confining its workforce.
The third quarter of 2020
On July 1, 2020 no statewide construction shutdown remained, and every State that had one had replaced it with a site regime having the force of law: New York's NY Forward construction guidance and affirmation (New York City reopened June 8); Pennsylvania's construction guidance and the Secretary of Health's worker-safety order; Michigan's Executive Order 2020-97 and its successors (2020-114, 2020-145, 2020-161, 2020-175, 2020-184), with Executive Order 2020-160 (July 29, 2020; effective July 31, 2020), § 1 ("Any work that is capable of being performed remotely ... must be performed remotely"), in force until the Supreme Court of Michigan's decision of October 2; Washington's Phase 1 and Phase 2 construction requirements and the Department of Labor and Industries' rule making every proclamation condition a workplace violation (readopted July 2); New Jersey's Executive Order No. 142 site policies; Massachusetts' Order No. 33 standards; the Bay Area protocols carried into the July 2, 2020 orders and later orders; Los Angeles's exposure-control plan requirement; Boston's affidavit; Philadelphia's Construction Authorization as amended; Kentucky's construction requirements; Ohio's protocols; and the Summit and Salt Lake County protocols.153 Tennessee's Executive Order No. 38 (Ex. TN-018) carried its gathering limits, urged telework and directed every employer and business to operate in accordance with the Economic Recovery Group's guidance, including the Pledge construction standards (Ex. TN-061), as the operating standard, with the six locally run health departments free to require more. Virginia's Emergency Temporary Standard took effect July 27, 2020 for "every employer, employee, and place of employment in the Commonwealth" and placed "indoor and outdoor construction settings" in its "medium" exposure classification.154 Statewide face-covering orders, airborne-transmission controls on every enclosed site and site office, took effect in Texas (July 3), Kansas (July 3), West Virginia (July 7), Alabama (July 16), Arkansas (July 20), Ohio (July 23), Minnesota (July 25) and Wisconsin (August 1), joining the orders already in force in the Northeast and West.155 Gathering caps of ten to fifty reached toolbox talks, pre-bid conferences and owner meetings in every State; California re-closed indoor operations of its owners' sectors on July 13 and moved to the Blueprint tiers on August 31; Nevada re-closed bars in seven counties, including Clark and Washoe, from July 10 to August 20 (Directive 027, Ex. NV-022); Honolulu re-imposed a full stay-at-home order from August 27 to September 23, 2020, requiring every business outside its essential list "to cease all activities within such facilities."156 The FFCRA mandate ran throughout, reissued September 16; Proclamations 10014 and 10052 barred immigrant and H-2B entry; the H-2B temporary rule ran to September 11; the Federal Maritime Commission's investigation and the Captain of the Port conditions the Coast Guard's bulletins announced governed every import; the emergency notarization regimes ran in every State that had one.157 On September 30, 2020 every one of those regimes remained.
By function, the quarter's orders reached the operation as follows. JS: capped, distanced, planned, screened and placed under face-covering requirements in every State; Honolulu's sites closed again for four weeks. PM: counters by appointment; inspections modified. BD: meetings capped; public bodies remote. SC: manufacturing under State plans; imports conditioned; respirators allocated. SB: every trade under the site regimes. OW: owners re-closed in California, Nevada and Hawaii; capped everywhere. HR: bar, engineering and contractor examinations cancelled or converted; H-2B entry barred. OP: offices capped or remote in the Northeast, Midwest and West. WF: FFCRA leave; quarantines; travel quarantines; transit face-covering rules and rider caps. CB: customers under re-tightened orders.158
During the calendar quarter beginning July 1, 2020 and ending September 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the mandatory construction site regimes of New York, Pennsylvania, Michigan, Washington, New Jersey, Massachusetts, the Bay Area, Los Angeles, Boston, Philadelphia and Kentucky (Exs. SEC-09-017, SEC-09-008, SEC-09-034, MI-040, SEC-09-005, AGY-ST-LABOR-WORKPLACE-050, SEC-09-003, SEC-09-040, SEC-09-022, SEC-09-025, MET-PHL-025, KY-066), Virginia's Emergency Temporary Standard (Ex. SEC-09-012), the statewide face-covering and gathering orders (Exs. TX-022, KS-030, WV-041, AL-027, AR-060, OH-030, WI-009), the owners' re-closure orders (Exs. CA-010, CA-017, MET-HNL-019), the federal workforce and entry orders (Exs. FED-172, AGY-FED-LABOR-IMMIGRATION-008) and the court and recorder orders inventoried above, caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by holding every site under headcount, distancing, plan, screening and face-covering conditions, by re-closing the industry's owners in three States, by barring the entry of its seasonal workforce and by conditioning its supply.
The fourth quarter of 2020
On October 1, 2020 the site regimes of the third quarter continued; Michigan's executive-order regime ended October 2 and MIOSHA re-imposed the workplace rules by emergency rule on October 14, with construction-specific requirements, a daily entry screen, a designated coordinator and remote work where feasible; Detroit ordered daily screening on October 9 and Wayne County incorporated the MIOSHA rules on October 16.159 New Jersey's Executive Order No. 192 placed every worksite in the State under mandatory protocols from 6:00 a.m. November 5; Oregon OSHA's all-workplace rule took effect November 16; Cal/OSHA's COVID-19 Prevention Emergency Temporary Standards became operative November 30, requiring a written program, face coverings, exclusion of cases and close contacts with pay and outbreak testing at every California site; Washington readopted its rule on November 16 and December 16; Virginia's ETS ran throughout.160 The winter re-tightening re-closed or re-capped the industry's owners, offices and building departments in more than twenty jurisdictions between October 14 and December 26: Michigan's gathering and face-covering orders (October 29, November 18); Utah (November 9); Iowa's remote-work order (November 11); North Dakota and Idaho (November 14); Washington and Colorado (November 17); Oregon's freeze (November 18); Illinois, Minnesota, Kentucky and Montana (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 (November 16, December 2); Wyoming (December 9); North Carolina (December 11); Mississippi (December 11); Virginia (December 14); Oklahoma (December 14); and Texas's automatic rollbacks in the trauma service areas the Department of State Health Services listed.161 The California Contractors State License Board announced the closure of all seven test centers and its counters again on December 7, under the Regional Stay at Home Order; the Federal Maritime Commission issued its supplemental order on November 19; the FFCRA mandate ran to December 31 and Proclamation 10131 continued the entry suspensions to March 31, 2021 on December 31.162 The Navajo Nation's stay-at-home lockdown closed "[a]ll Businesses not otherwise exempted" from November 16, 2020 (continued by Public Health Emergency Order No. 2020-031 of December 3, 2020, Ex. AZ-072) to March 15, 2021, with 57-hour weekend lockdowns, across a territory the size of West Virginia; Mescalero admitted contractors only by presidential approval from October 19.163 On December 31, 2020 every re-tightening order above was in force.
By function, the quarter's orders reached the operation as follows. JS: under MIOSHA, Oregon OSHA and Cal/OSHA standards and the continuing site regimes; screened daily in Michigan; under face-covering requirements everywhere. PM: counters closed again in the re-tightening States. BD: gatherings cut to ten or fewer. SC: California's and Michigan's manufacturing under standards; borders and ports conditioned. SB: every trade under the standards; licensing examinations closed in California. OW: owners re-closed or re-capped in more than twenty jurisdictions. HR: examinations remote or cancelled; entry suspended to March 31, 2021. OP: offices ordered remote in Pennsylvania, Iowa and Michigan and capped in Washington, Illinois and Colorado. WF: FFCRA leave to December 31; school closures; quarantines; transit caps. CB: customers under the winter orders.164
During the calendar quarter beginning October 1, 2020 and ending December 31, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the State occupational-safety rules of Michigan, Oregon and California (Exs. MI-054, AGY-ST-LABOR-WORKPLACE-062, SEC-09-013, SEC-09-010), New Jersey's Executive Order No. 192 (Ex. SEC-09-023), the continuing site regimes (Exs. SEC-09-017, SEC-09-008, AGY-ST-LABOR-WORKPLACE-050, SEC-09-012, SEC-09-040), the winter re-tightening orders (Exs. MI-059, IA-029, WA-047, CO-081, OR-033, IL-031, MN-032, KY-033, CA-019, CA-020, NV-030, PA-022, PA-028, NC-023, VA-016, TX-025), the Navajo Nation's lockdown (Ex. AGY-TRIBAL-013), the federal workforce and entry orders (Exs. FED-172, AGY-FED-LABOR-IMMIGRATION-008) and the licensing and recorder closures (the Board's closure announcement, Ex. AGY-ST-TRADE-BOARDS-017, implementing Ex. CA-020), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by placing every site in four States under occupational-safety standards with the force of law, by re-closing or re-capping the industry's owners and offices for the second time in nine months, and by holding every other site under its continuing regime.
The first quarter of 2021
On January 1, 2021 the winter orders were in force in every jurisdiction named above and expired in steps: California's Regional Stay at Home Order on January 25, with the Blueprint tiers continuing; Iowa on February 7; Arkansas's business directives on February 26 and its face-covering directive on March 31; Mississippi on March 3; Texas on March 10; Wyoming on March 15 and 16; Arizona on March 25; Kansas on March 31; Pennsylvania's telework mandate on April 4; Minnesota's telework mandate on April 14 (Ex. MN-037), with its capacity and gathering limits running to May 27 (Ex. MN-038); and Colorado's caps on April 16 (Ex. CO-051).165 Virginia's Permanent Standard replaced its ETS on January 27; MIOSHA's, Oregon OSHA's, Cal/OSHA's and Washington's rules ran throughout (Washington readopted January 12); New Jersey's Executive Order No. 192 and New York's construction guidance ran throughout; the Bay Area protocols ran throughout; the California Contractors State License Board's closure ran into January.166 Executive Order 13991 (January 20) placed every federal building and on-site contractor under workplace infection-prevention and exposure-control requirements, universal masking and physical distancing; OMB Memorandum M-21-15 (January 24) capped every federal workplace at twenty-five percent of normal occupancy; the CDC's conveyance order required face coverings on every transit commute from February 1, an airborne-transmission control the TSA's directives enforced; the Federal Railroad Administration's Emergency Order No. 32 extended the requirement to every railroad worksite from March 1; the Coast Guard announced its enforcement of the face-covering requirement on every commercial vessel from February 1 and at every sea port and cargo facility from March 22; Proclamation 10143 continued the entry suspensions on January 25 and Proclamation 10052 ran to March 31; OSHA's National Emphasis Program of March 12 named construction among its secondary target industries.167 The Navajo Nation's lockdown, continued by Public Health Emergency Orders Nos. 2020-031 and 2021-001 (Exs. AZ-072, AZ-073), ran to March 15, 2021; Mescalero's omnibus order ran through the quarter.168 On March 31, 2021 every workplace standard, every continuing site regime, every federal workforce and conveyance order and the emergency declarations of the States, in force in thirty-five States as late as July 2, 2021, remained in force.
By function, the quarter's orders reached the operation as follows. JS: under standards in Michigan, Oregon, California, Washington and Virginia; under the site regimes in New York, New Jersey, Pennsylvania, the Bay Area and Los Angeles; under face-covering requirements everywhere. PM: counters closed or by appointment through the winter. BD: gatherings capped to their stepped expiry; federal owners at twenty-five percent occupancy and under masking and distancing rules. SC: borders, ports and allocation orders continuing. SB: every trade under the standards and regimes. OW: owners under the winter orders to their expiry. HR: examinations remote; entry suspended to March 31. OP: offices remote or capped to the stepped expiry. WF: the conveyance face-covering rule from February 1; school closures and quarantines. CB: customers under the winter orders.169
During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the State occupational-safety standards (Exs. AGY-ST-LABOR-WORKPLACE-062, SEC-09-013, SEC-09-010, AGY-ST-LABOR-WORKPLACE-078, SEC-09-012), the continuing site regimes (Exs. SEC-09-017, SEC-09-008, SEC-09-023, SEC-09-040), the winter orders in force to their expiry (Exs. PA-022, CA-020, CO-037, MN-032, IL-031, WA-056, TX-025, IA-029, MS-046, KY-033), the federal workplace, conveyance and entry orders (Exs. FED-060, FED-270, FED-020, FED-050, AGY-AVIATION-SURFACE-014, FED-207), OSHA's National Emphasis Program (Ex. SEC-09-018), the Navajo Nation's lockdown (Exs. AZ-072, AZ-073) and the licensing closures (the Board's closure announcement, Ex. AGY-ST-TRADE-BOARDS-017, implementing Ex. CA-020), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by holding every site in the standard States and the regime States under compelled conditions through the winter, by keeping the industry's owners and offices under the winter orders to their stepped expiry and by placing every federal engagement and every transit commute under face-covering and occupancy conditions.
The second quarter of 2021
On April 1, 2021 the construction site regimes and workplace standards ran to their stepped ends: Massachusetts' standards to May 29; Pennsylvania's worker-safety and mitigation orders to May 31; New York's construction guidance to June 15 and its executive orders to June 25; Michigan's MIOSHA rules, extended April 13 and amended May 24, to June 22; Washington's construction requirements and phases to June 30; the Bay Area protocols to June 15; Kentucky's construction requirements to June 11; New Hampshire's Universal Guidelines to May 7; Maine's checklists to June 30; Connecticut's orders to May 20; Vermont's to June 15; Oregon's framework to June 30.170 Oregon OSHA made its rule permanent on May 4; Virginia's Permanent Standard, Cal/OSHA's standard and Washington's rule ran throughout, Washington readopting May 14 and 24 and Cal/OSHA readopting with amendments on June 17; New Jersey ended its general restrictions on May 24 and June 4 but ordered by Executive Order No. 243 that employers "must continue to follow the provisions of Executive Order No. 192 (2020), as applicable," carrying that order's worksite requirements by Executive Orders Nos. 242 and 243, the order P.L. 2021, c. 103, § 1(14) preserved to January 1, 2022; New York enacted the HERO Act on May 5, effective June 4, requiring every private employer to adopt an exposure prevention plan on a schedule the Department of Labor fixed.171 Executive Order 13991 ran throughout and the federal occupancy cap to June 10; the conveyance order and the TSA directives (renewed May 12) required face coverings on every commute; Proclamation 10199 (May 4) continued the entry suspensions; the Healthcare ETS took effect June 21 for every contractor working in a covered health-care setting; the H-2B supplemental rule issued May 25; the land-border restrictions were continued June 22; the Virginia DPOR waivers ran to July 30 and California's DCA waivers to July 31; Nevada's plan ended June 1; New Mexico's Public Health Emergency Order of June 30, 2021, effective July 1, kept the COVID-Safe Practices mandatory for all businesses; Colorado's Public Health Order 20-38 was amended for July 1.172 On June 30, 2021 Washington's, Oregon's and Maine's general orders and Nebraska's emergency were in their last day; Maryland's residual orders ran to July 1 and Delaware's setting-specific rules to July 13; every workplace standard, every court order, every federal order and New Jersey's Executive Order No. 192, as carried by Executive Orders Nos. 242 and 243, remained.
By function, the quarter's orders reached the operation as follows. JS: under the site regimes to their expiry and under the standards throughout; every California site under the readopted ETS from June 17. PM: counters reopening by appointment through the quarter. BD: gatherings capped to the stepped expiry; federal owners under masking, distancing and occupancy rules to June 10. SC: borders, ports and allocation orders continuing. SB: every trade under the same instruments. OW: owners under caps to their expiry; health-care owners under the ETS from June 21. HR: July 2021 examinations ordered remote; waivers running. OP: offices under caps and standards. WF: the conveyance face-covering rule; quarantine orders; paid-leave mandates. CB: customers under orders to their expiry.173
During the calendar quarter beginning April 1, 2021 and ending June 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the construction site regimes in force to their expiry (Exs. MA-048, PA-035, PA-036, SEC-09-017, NY-049, AGY-ST-LABOR-WORKPLACE-062, MI-076, WA-065, SEC-09-040, KY-049, NH-045, ME-081, CT-046, VT-044, OR-043), the workplace standards (Exs. SEC-09-014, SEC-09-048, AGY-ST-LABOR-WORKPLACE-050, SEC-09-023, SEC-09-038, NJ-053, ECO-B-120), the federal workplace, conveyance, entry and health-care orders (Exs. FED-060, FED-270, FED-271, FED-020, FED-051, FED-208, FED-080, FED-232) and the court, licensing and notarial instruments inventoried above (Exs. TX-041, AGY-ST-TRADE-BOARDS-050, AGY-ST-DMV-SOS-RECORDERS-040), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by holding the industry's sites under caps, plans, screening and standards for the whole quarter in the standard States and to their stepped ends between May 29 and June 30, 2021 in the regime States, by keeping the owners, counters and federal engagements under orders to the quarter's last day and by conditioning every commute.
The third quarter of 2021
(A) The Service's premise and what the statute asks
There were no government orders related to COVID-19 in effect during the quarter(s) you claimed ERC which could have fully or partially suspended your trade or business.
As stated in the Service's letters, Forms 886-A and memoranda
The Service's letters state that sentence for this quarter.174 The statute asks whether, during the calendar quarter beginning July 1, 2021 and ending September 30, 2021, the operation of the trade or business was fully or partially suspended due to orders from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19. Congress re-enacted that clause on March 11, 2021 for exactly this quarter, with knowledge of the Notice and of the orders then in force, and preserved it when it terminated the fourth quarter on November 15, 2021.175 The inventory in (B) lists only instruments in force on some day between July 1 and September 30, 2021, each with its issuer, dates, operative clause, compliance date, enforcement, status on the quarter's first and last day and the functions it reached; the closing paragraph names the expired instruments on which the proof does not rest.
(B) The instruments in force: the federal workforce and contractor orders
B-1. Executive Order 13991, Protecting the Federal Workforce and Requiring Mask-Wearing (President; January 20, 2021), imposed workplace infection-prevention and exposure-control requirements, universal masking and physical distancing, on federal employees, "on-site Federal contractors" and all persons in federal buildings, enforced through each agency's safety plan; the Safer Federal Workforce Task Force's Agency Model Safety Principles, revised July 29, 2021, required every unattested or unvaccinated onsite contractor to mask, distance and submit to weekly testing, with the Certification of Vaccination form issued August 6, 2021; in force July 1 and September 30, 2021; functions OW, BD, JS, HR.176 B-2. Executive Order 14042 of September 9, 2021, Ensuring Adequate COVID Safety Protocols for Federal Contractors, 86 Fed. Reg. 50985 (Sept. 14, 2021) (President; effective on signature), required every covered federal contract and subcontract "at any tier" to include a clause requiring compliance with the Task Force's guidance; the Task Force's Guidance for Federal Contractors and Subcontractors (September 24, 2021), approved by the OMB determination of the same date, required covered contractor employees to be "fully vaccinated" by December 8, 2021, required masking and distancing at covered workplaces and required a designated coordinator, with the clause to appear in solicitations from October 15 and contracts from November 14, 2021; the Task Force's contractors page as captured September 30, 2021 announced the regime; in force from September 9 and September 24 through September 30, 2021; enforcement through the contract clause and the Federal Property and Administrative Services Act; functions OW, SB, HR, JS, OP.177 B-3. OSHA's National Emphasis Program, DIR 2021-01 (March 12, 2021), listed construction (NAICS 236-238) in its Appendix B and was in force July 1 through July 7, 2021; the revised program, DIR 2021-03 (July 7, 2021), kept construction within inspection scope on complaint or referral and was in force from July 7 through September 30, 2021; enforcement by inspection and citation under 29 U.S.C. § 658; functions JS, OP.178 B-4. The Healthcare Emergency Temporary Standard, 29 C.F.R. § 1910.502 (OSHA; announced June 10, 2021; published and effective June 21, 2021, 86 Fed. Reg. 32376; compliance dates July 6 and 21, 2021), bound every employer, including a contractor, performing work in a covered health-care setting, with a written plan, screening, distancing, masking and paid removal; DIR 2021-02 (June 28, 2021) fixed its inspection procedures; in force July 1 and September 30, 2021; functions JS, OW, HR.179 B-5. The Department of Transportation's Acquisition Directive 2021-02 (September 17, 2021, effective on issue) required every on-site contractor employee at DOT facilities to attest to vaccination or be tested; in force from September 17 through September 30, 2021; functions OW, BD, HR.180
The instruments in force: the federal conveyance, entry, border, maritime and materials orders
B-6. The CDC's Order, Requirement for Persons To Wear Masks While on Conveyances and at Transportation Hubs (January 29, 2021, effective February 1, 2021, "until further notice"), and the TSA's Security Directives SD 1582/84-21-01A (effective May 12, 2021, expiring September 13, 2021) and SD 1582/84-21-01B (effective September 14, 2021, expiring January 18, 2022) required a face covering of every crew member commuting by bus, rail or ferry and at every transit worksite, an airborne-transmission control enforced by the TSA and by civil penalty; the Federal Railroad Administration's Emergency Order No. 32 (effective March 1, 2021) extended the requirement to every railroad worksite, terminal and yard on pain of a civil penalty of up to $118,826 per day; in force July 1 and September 30, 2021; functions WF, JS.181 B-7. Proclamation 10143 (January 25, 2021) and Proclamation 10199 (effective May 4, 2021) suspended the entry of nonimmigrants present in the listed countries; the Department of Homeland Security's notifications of June 23, July 22, August 23 and September 22, 2021 continued the land-border restrictions with Canada and Mexico to July 21, August 21, September 21 and October 21, 2021 (Exs. FED-232, FED-255, FED-233, FED-256, FED-234, FED-257, FED-258); in force July 1 and September 30, 2021; functions SC, HR, WF.182 B-8. The CDC's conveyance order (B-6) required face coverings aboard every commercial vessel and at every sea port and cargo handling facility, and the Coast Guard's Marine Safety Information Bulletin 02-21, Change 2 (June 11, 2021) and Change 3 (September 2, 2021), announced its enforcement of that requirement through Captain of the Port orders under 33 C.F.R. § 160.216 and facility security measures under 33 C.F.R. § 105.125 (the bulletins are cited as the announcements implementing the order, not as orders); the Federal Maritime Commission's Fact Finding No. 29 supplemental order (November 19, 2020) governed the alliance carriers at the ports through which the industry's imports move; the Department of Health and Human Services extended the Defense Production Act scarce-materials designation on July 7, 2021 to November 15, 2021; in force July 1 and September 30, 2021; functions SC.183 B-9. The federal district courts' orders (masking, screening, remote proceedings and, from September 13, 2021, vaccination or testing of court entrants) governed every federal courthouse; in force on July 1 and September 30, 2021; functions BD, OP, CB.184
The instruments in force: the State workplace standards and exposure plans
B-10. California: the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards, 8 CCR §§ 3205-3205.4, as readopted with amendments by the Occupational Safety and Health Standards Board, operative June 17, 2021 (superseded by the refiling operative January 14, 2022), required of every employer a written COVID-19 Prevention Program, face coverings for unvaccinated employees indoors and in vehicles, exclusion of cases and close contacts from the workplace with pay, outbreak testing and reporting, enforced by citation and civil penalty under Labor Code §§ 6317 and 6428; in force July 1 and September 30, 2021, governing every California job site, site office and crew vehicle; functions JS, WF, HR, OP, SB.185 B-11. Virginia: 16VAC25-220, the Final Permanent Standard for Infectious Disease Prevention (Safety and Health Codes Board; adopted January 13, 2021, effective January 27, 2021, amended September 8, 2021, revoked March 23, 2022), bound "every employer, employee, and place of employment in the Commonwealth" to hazard assessment, exposure classification (construction settings "medium"), notification, sanitation, distancing and masking duties, enforced by Virginia Occupational Safety and Health ("VOSH") citation under Va. Code § 40.1-49.4; Executive Directive Eighteen (August 5, 2021, effective September 1, 2021) required vaccination or weekly testing of State workers, and the judicial emergency ran to October 13, 2021; in force July 1 and September 30, 2021; functions JS, HR, OP, OW.186 B-12. Oregon: OAR 437-001-0744, Oregon OSHA's COVID-19 workplace rule (permanent rule by Administrative Order 2-2021, May 4, 2021; amended June 30, 2021 and, by Administrative Order 12-2021 of September 14, effective September 16, 2021, to add medical removal protection benefits and enforcement of the Health Authority's masking rules), bound every place of employment, with penalties under ORS 654.071 and 654.086; the Oregon Health Authority's OAR 333-019-1025 (PH 35-2021, filed August 11, effective August 13, 2021) required face coverings in indoor spaces, an airborne-transmission control Oregon OSHA enforced from September 16, 2021, and named "construction sites"; in force July 1 and September 30, 2021; functions JS, OP, WF.187 B-13. Washington: WAC 296-800-14035 (Department of Labor and Industries; adopted May 26, 2020, readopted July 6, August 23 and September 20, 2021) made every prohibition and condition of the Governor's proclamations, including Proclamation 20-25.14, Washington Ready (July 1, 2021), Proclamation 20-25.15 (effective August 23, 2021) and the Secretary of Health's indoor face-covering orders 20-03.4 (effective August 23, 2021) and 20-03.5 (September 13, 2021), a workplace-safety violation punishable under RCW 49.17.180; WAC 296-62-600 (August 10, 2021) required outbreak reporting; Proclamation 21-14 (August 9, 2021, as amended August 20 and September 27) required vaccination of State agency workers and of contractors working on site for State agencies by October 18, 2021; in force July 1 and September 30, 2021; functions JS, OW, HR, WF, OP.188 B-14. New Jersey: Executive Order No. 192 (Governor Murphy; October 28, 2020, effective 6:00 a.m. November 5, 2020) required every business "that requires or permits its workforce ... to be physically present at a worksite" to maintain distancing, provide and require masks, provide sanitization, conduct daily health checks and exclude sick employees, enforced by the Department of Labor and Workforce Development and the Department of Health under N.J.S.A. App. A:9-49 and -50; Executive Order No. 243 (effective 6:00 a.m. June 4, 2021) relieved fully vaccinated employees of masking and distancing at worksites closed to the public but ordered that employers "must continue to follow the provisions of Executive Order No. 192 (2020), as applicable"; from June 4, 2021 the order's distancing, masking, sanitization and daily-health-check requirements were carried by Executive Order No. 242 ¶¶ 2-3 and 6 (Ex. NJ-050) and Executive Order No. 243 ¶¶ 1-4 (Ex. SEC-09-038), the order P.L. 2021, c. 103, § 1(14) (June 4, 2021) (Ex. NJ-053) preserved to January 1, 2022, and Executive Order No. 192 expired as a free-standing order on July 4, 2021 under c. 103 § 1; Executive Order No. 251 (effective August 9, 2021) required face coverings in every school; vaccination-or-testing rules reached covered health-care and congregate-setting workers (Executive Order No. 252, August 6, 2021, effective September 7, 2021, Ex. NJ-056) and preschool-through-grade-12 school workers (Executive Order No. 253, August 23, 2021, effective October 18, 2021, Ex. NJ-057); in force July 1 through July 4, 2021 as Executive Order No. 192 and on every day of the quarter as carried by Executive Orders Nos. 242 and 243; functions JS, OP, HR, SB, OW.189 B-15. New York: N.Y. Labor Law § 218-b, the HERO Act (Chapter 105 of the Laws of 2021, May 5, 2021, as amended June 11, 2021), required every private employer to adopt an airborne infectious disease exposure prevention plan; the Department of Labor published the Airborne Infectious Disease Exposure Prevention Standard and the model plans on July 6, 2021, including the construction template P765B, which reaches "independent contractors ... day laborers" and "contractors or subcontractors ... at any individual work site" and limits "in-person meetings (including toolbox talks, pre-shift meeting, safety meetings)"; plans were required by August 5, 2021, distributed and posted by September 4, 2021, and activated on September 6, 2021 when the Commissioner of Health designated COVID-19 a highly contagious communicable disease, a designation continued on September 30, 2021, with civil penalties and a private right of action; 10 NYCRR § 2.61 (August 26, 2021) required vaccination of every worker in covered health-care entities; the Commissioner's masking determination of August 27, 2021 and the Subpart 66-3 rules of June 23, 2021 governed face coverings; Executive Order No. 4 (September 27, 2021) declared a new statewide disaster emergency; in force from July 6 (standard), August 5 (plans) and September 6 (activation) through September 30, 2021; functions JS, SB, OP, HR, OW, BD.190 B-16. New Mexico: the Public Health Emergency Order of June 30, 2021, effective July 1, 2021, kept the COVID-Safe Practices mandatory for "all businesses"; the Order of August 17, 2021 (Ex. NM-067) required face coverings in all indoor public settings from August 20, an airborne-transmission control added to the COVID-Safe Practices that remained mandatory for all businesses, and the Order of September 15, 2021 (Ex. NM-070) extended it; Executive Order 2021-046 (effective August 2, 2021) and the school-worker order of August 17, 2021 (Ex. NM-068), as amended September 15, 2021 (Ex. NM-071), required vaccination or testing; in force July 1 and September 30, 2021; functions JS, OP, OW, WF.191 B-17. Nevada: Directive 047 (July 27, 2021, effective July 30, 2021) required face coverings of every person, vaccinated or not, in indoor public settings in counties of substantial or high transmission, Clark and Washoe throughout, an airborne-transmission control imposed on every indoor workplace in those counties; Directive 048 (August 4, 2021) defined those settings to include "office buildings, breakrooms, hallways, cafeterias, meeting rooms"; Directive 050 (September 2, 2021) governed large events; Clark County Code 3.04.065 made every directive punishable by license suspension, a $1,000-per-day penalty and a misdemeanor, and the County's July 20, 2021 measure required a face covering, as a workplace exposure-control condition, of every employee of every indoor public-facing business from July 22; in force from those dates through September 30, 2021; functions JS, OP, BD, WF.192 B-18. Colorado: Public Health Order 20-38, Limited COVID-19 Restrictions, as amended effective July 1, August 1 and September 1, 2021, continued the State's remaining requirements; the emergency rule of August 30, 2021 required vaccination of the employees and "Direct Contractors" of licensed health-care facilities; Denver adopted the State orders on July 1 and August 2, 2021 and required vaccination of covered workers from August 2, amended September 1, 2021; in force July 1 and September 30, 2021; functions OW, JS, HR.193
The instruments in force: the Delta-wave face-covering, emergency and school orders of the States and metros
B-19. The Delta-wave indoor face-covering orders, workplace infection-prevention and exposure-control requirements of which universal face coverings were the common command (several, named in the metros subsection above, adding employee screening, proof of vaccination or vaccination of covered workers), re-conditioned every enclosed site, site office and permit counter from their effective dates through September 30, 2021: Los Angeles County (July 17, revised August 19); Clark County employees (July 22) and Nevada (July 30); St. Louis (July 26); Sacramento County (July 30); the District of Columbia (5:00 a.m. July 31); the eight Bay Area jurisdictions (August 3); Louisiana (August 4); Kansas City (August 2); Montgomery County, Maryland (August 7); Prince George's County (August 4); Kentucky's schools and child-care settings (August 10 and 12); Baltimore (August 10); Dallas County (August 11); Bexar County (August 11); Philadelphia (August 12); New Mexico (August 20); Oregon (August 13); Chicago (August 20) and Cook County (August 23); Washington (August 23); Boston (August 27); Illinois (August 26 and 30, with employer duties from September 3); San Miguel County, Colorado (September 1); Connecticut's listed settings (Executive Order No. 13A, August 5; DPH order, August 7); Columbus (Executive Order 2021-01, September 10; Ordinance 2388-2021, September 13, effective 8:00 a.m. September 14, § 1.d of which named "certain high-density occupational settings where social distancing is difficult, such as manufacturing, construction, and agriculture," including "NAICS sectors 311 to 339 (manufacturing), 236 to 238 (construction), and 111, 112, 1151, and 1152 (agriculture)"); Dayton (September 17); Richland County (September 15); Columbia (August 5); Iowa City (August 19); Douglas County, Kansas (August 19); Monroe County, Indiana (August 5); Juneau (July 30); King County (September 7); and Honolulu (September 22); each enforced by fines, citations or employer duties; functions JS, OP, PM, BD, WF.194 B-20. Emergency declarations and continuations issued or renewed within the quarter carried the courts', health departments' and schools' orders: Alabama (August 13), Arkansas (July 29), Stillwater, Oklahoma (September 3 to 20, Ex. OK-089), Rhode Island (August 19), Georgia's Economic Recovery State of Emergency (June 30, renewed July 22, August 19 and September 20, with the order of August 19, 2021 dictating what local rules bind a business), Texas (GA-38 of July 29, as modified by GA-39 of August 25, under a disaster declaration renewed August 29), New York (September 27), Iowa (July 23, August 19, September 17), Missouri (Executive Order 21-07 to August 27, then Executive Order 21-09, August 27 to December 31, 2021), Indiana (Executive Orders 21-17, 21-19 and 21-24), Tennessee (to July 30), Delaware (public health emergency from July 12), Alaska (addendum September 21), Minneapolis and Saint Paul (July 1, August 3, August 20, August 31), Cobb County (August 19 and September 17), Savannah (July 26 and August 24), and the Navajo Nation (Orange Status August 12); in force on the dates stated; functions OW, BD, WF.195 B-21. School masking and quarantine orders governed the workforce's households from the opening of the 2021-22 school year: California (July 12), Oregon (August 2), Illinois (August 4), Louisiana (August 3), New Jersey (August 9), Kentucky (August 12), Nevada, New Mexico (September 15), Connecticut, Washington, Pennsylvania (September 7), North Carolina (S.L. 2021-130, August 30), Ohio's quarantine guidance (August 31), Texas's guidance (September 2), the Boise, Phoenix Union, Houston, New York City, Fairfax, Prince George's, Clayton, Atlanta, DeKalb, Los Angeles, Chicago, Louisville, Lexington and Detroit districts, and the court orders sustaining them; in force from their dates through September 30, 2021; functions WF.196
The instruments in force: the courts, licensing boards, permit offices, recorders and paid-leave mandates
B-22. The courts of at least twenty-nine States and the federal courts kept masking, screening, remote-proceeding, jury-postponement or vaccination orders in force on July 1 and September 30, 2021, among them the Supreme Court of Texas's Thirty-Ninth and Fortieth Emergency Orders (July 19, effective July 19 and August 1, to October 1), the Supreme Court of Florida's protocols (June 21, amended July 29), Maryland's courthouse masking (August 9) and judiciary vaccination (August 20), Kentucky's Administrative Orders 2021-27 and 2021-28 (August 9), the Maricopa County Superior Court's universal masking (August 9), the Fifth Judicial District's (Pittsburgh) masking (August 10), the Marion County courts' masking (August 16), Minnesota's judicial branch orders (June 28 and July 30), South Dakota's courthouse safety order (July 6), Utah's courthouse mask mandate (July 30), Idaho's (August 9), Vermont's (July 6 and September 1), Rhode Island's (July 20), Virginia's judicial emergency (to October 13), Hawaii's jury-trial postponements (August 16, September 29), Alaska's special orders (August 3 and 31), Michigan's continued alternative procedures (July 2 and 26), Iowa's (August 27), Tennessee's (May 14 and August 26), South Carolina's trial-court orders (June 15, July 30, August 27), Wisconsin's circuit court order (May 21), Oregon's Chief Justice Order 21-039 (September 16) and the Eighth Judicial District Court of Nevada's Administrative Order 21-05 (July 19); functions BD, OP, CB, PM.197 B-23. California's Department of Consumer Affairs waived license-renewal requirements for Division 3 licensees, including contractors, by DCA-21-153 (to July 31, 2021), DCA-21-176 (through September 30, 2021) and DCA-21-195 (September 28, 2021); Virginia's DPOR waivers ran to July 30, 2021; the California Department of Motor Vehicles announced on September 2, 2021 the extension of commercial driver credentials through November 30, 2021 (the announcement is cited as the record of the extension made under the Governor's executive orders); the remote-notarization regimes of Massachusetts (to December 15, 2021), Texas (for the life of the disaster declaration), Vermont (to July 15, 2021), Maryland (to August 15, 2021), Mississippi, Georgia, Washington and New Jersey governed the closings, lien waivers and loan documents of the industry; functions HR, PM, SB.198 B-24. The paid-leave mandates of New York (Chapter 25 of 2020), New Jersey (P.L. 2020, c. 9 and c. 17), Colorado (the Healthy Families and Workplaces Act) and Massachusetts (Chapter 16 of the Acts of 2021, extended September 29, 2021 to April 1, 2022) compelled the industry to pay every quarantined and exposed employee not to work; the quarantine orders of San Diego County (revised July 22, 2021), Arkansas, New Hampshire and Kansas (travel) removed exposed workers from sites for ten to fourteen days, and the school isolation and quarantine orders of Ottawa, Genesee, Kalamazoo and Berrien Counties, Michigan (August 6 to September 6, 2021; Exs. MI-081, MI-082, MI-083, MI-084, MI-085) kept exposed children and their parents at home; the workers'-compensation presumptions of California's SB 1159 and Connecticut's Executive Order 7JJJ governed every on-site injury claim; functions WF, HR.199
The instruments in force: the tribes and territories
B-25. The Navajo Nation's face-covering mandate (never rescinded), Safer at Home order, Yellow Status (fifty percent) to August 12 and Orange Status thereafter, curfew to August 4, gathering limits, Safe Schools Framework (July 8) and, to July 6, 2021, road closures to visitors (Council Resolution CMA-16-20; the closure's end recorded at Ex. AZ-079) governed every contractor on the Nation; the Mescalero Apache Tribe, by Executive Order 21-05 of August 19, 2021, re-imposed face coverings on every enterprise and contractor employee "regardless of vaccination status" from August 20, 2021 and continued its gathering and screening conditions; the Yakama Nation's Public Safety Order No. 3 bound every business "whether licensed by the Yakama Nation or the State of Washington" with $500 fines; Puerto Rico's OE-2021-065 (effective September 2, 2021) required face coverings in all indoor spaces and set midnight closing hours, and OE-2021-062 and -063 conditioned contractors, lodging and venues on vaccination or weekly testing from August 16 and 23, 2021; in force on the dates stated through September 30, 2021; functions JS, WF, OW, SB.200
(C) How they reached the functions
The instruments in (B) reached the ten functions as follows. JS: every California site operated under the readopted Cal/OSHA standard; every Virginia, Oregon and Washington site under a workplace standard; every New Jersey site under Executive Order No. 192's requirements as carried by Executive Orders Nos. 242 and 243; every New York site under an adopted and, from September 6, an activated exposure prevention plan whose construction template limited toolbox talks and reached every subcontractor and day laborer; every enclosed site and site office in the States and metros under Delta-wave face-covering orders operated under those exposure-control requirements; every contractor inside a hospital or nursing home operated under the Healthcare ETS and the health-care vaccination orders; every contractor on the Navajo Nation, the Mescalero Reservation and the Yakama Reservation under tribal orders. PM: permit counters and inspection offices operated under the face-covering orders of their jurisdictions; recorders and notaries under the regimes of eight States. BD: pre-bid conferences, site visits and owner meetings in the face-covering-order jurisdictions were held under those exposure controls by order; meetings with federal owners required attestation or testing from July 29 and were the subject of Executive Order 14042 from September 9; public bid openings and boards in Texas ran under the Open Meetings Act suspension to September 1, 2021 and, in Nevada, under Directive 048's meeting-room rule. SC: every import moved under the land-border notifications, the face-covering requirement the Coast Guard enforced at the ports and the Federal Maritime Commission's orders; respirators remained a designated scarce material to November 15, 2021; the Census Bureau found in July 2021 that 58.5 percent of construction small businesses reported domestic supplier delays. SB: every subcontractor at every tier of a covered federal contract was ordered to vaccinate its covered workforce by December 8, 2021; every trade on a New York site was within the HERO plan; every trade in California, Virginia, Oregon, Washington and New Jersey under the standards. OW: federal owners under Executive Order 13991 and the Task Force principles; health-care owners under the ETS and the vaccination orders; State-agency owners in Washington under Proclamation 21-14; school owners under the face-covering orders; public owners under the emergency continuations. HR: examinations under remote and capacity conditions; California's contractor renewals under the DCA waivers; commercial drivers under extended credentials; H-2B and nonimmigrant entry under Proclamations 10143 and 10199; vaccination attestations required at federal, State-agency and health-care sites. OP: every office in the face-covering-order States and metros under those controls; every New York office within a HERO plan; every New Jersey office under Executive Order No. 192; every California office under the ETS. WF: every transit commute under the federal face-covering requirement; every quarantined or exposed worker removed for ten to fourteen days, with pay in four States; every parent under the school masking and quarantine orders; every reservation resident under tribal orders. CB: every customer industry under the orders catalogued in the other industry analyses on this site for this quarter.201
(D) The continuing-suspension analysis
The clause asks whether the operation "is fully or partially suspended during the calendar quarter"; "during the calendar quarter" modifies "suspended," and Congress did not write "orders in effect during the quarter."202 Tri-State Memorial Hospital v. United States, No. 2:25-cv-0181-TOR, ECF No. 38 (E.D. Wash. May 28, 2026) ("Tri-State"), defines a suspension to include a "delay" and holds causation to be but-for.203 The Notice recognizes both halves of the point: Q&A-22 makes an employer suspended for part of a quarter eligible for the whole quarter, and Q&A-16 recognizes that "a significant delay (for example, beyond 2 weeks)" in moving between modes of operation is itself part of the suspension.204 Four pathways carry the suspension of this industry into the third quarter of 2021. First, the instruments in (B) were in force on every day of the quarter and were themselves orders limiting commerce, travel and group meetings; the proof for the quarter rests on them. Second, the orders of March 2020 through June 2021 compelled this industry to dismantle its operation, and the orders' own reopening steps show that the dismantling was not restored on July 1, 2021. The arithmetic is in the orders. Pennsylvania closed every construction site on March 19, 2020, reopened them on May 1, 2020 at four persons per residential site and four per 2,000 square feet of enclosed commercial space (Ex. SEC-09-008), then held every site under the Worker Safety Order's occupancy, face-covering and cleaning rules (Ex. PA-008) and, from November 27, 2020, the Mitigation and Enforcement Orders' occupancy, telework, screening and exclusion rules (Exs. PA-022, PA-023) until 12:01 a.m. May 31, 2021 (Exs. PA-035, PA-036): thirteen months of compelled site conditions ended thirty days before the quarter opened. New Jersey closed every non-essential site on April 10, 2020, reopened them on May 18, 2020 under dictated policies, placed every worksite under Executive Order No. 192 on November 5, 2020 and carried that order's worksite requirements through the period by Executive Orders Nos. 242 and 243. Michigan closed every site on March 24, 2020, reopened them on May 7, 2020 under supervisors, screening and choke-point controls, and held them under MIOSHA's rules until June 22, 2021, eight days before the quarter opened. Washington stopped construction on March 25, 2020, permitted "low-risk" work on April 24, 2020, phased the industry through its frameworks until June 30, 2021, the day before the quarter opened, and kept the workplace rule in force. New York confined construction to essential projects on March 27, 2020, reopened it on May 15 and June 8, 2020 under a Site Safety Plan regime that ran until June 15, 2021, fifteen days before the quarter opened, and then required a new written plan from every employer by August 5, 2021. Vermont went from a shutdown to crews of two, five and ten between March 25 and May 4, 2020, and ended its general orders on June 15, 2021. The Bay Area confined construction on March 31, 2020, reopened it on May 4, 2020 under protocols that ran to June 15, 2021. Boston paused every non-essential site on March 17, 2020 and restarted in categories through May 26, 2020 under an affidavit regime. A contractor whose crews were dispersed by those orders in the spring of 2020 (construction employment fell by 975,000 in April 2020, 691,000 of them in the specialty trades), whose sites were then manned at four persons or six feet apart for a year, whose subcontractors' schedules were rebuilt around the same caps, whose owners' projects were suspended or cancelled under the owners' own closure orders, and whose building departments issued permits and performed inspections by appointment and affidavit, was not operating on July 1, 2021 as it had operated in February 2020; the Bureau of Labor Statistics reported on October 8, 2021 that construction employment stood 201,000 below its February 2020 level, and the Census Bureau found in July 2021 that 58.5 percent of construction small businesses were still reporting domestic supplier delays.205 An employer whose operation was ordered suspended through June 30 was not walking normally on July 1. Third, the instruments that had not expired, the standards of California, Virginia, Oregon and Washington, New Jersey's Executive Order No. 192, the federal workforce and conveyance orders, the Healthcare ETS, the entry and border orders, the court orders and the emergency declarations, carried the compelled conditions of 2020 across the quarter's first day without interruption in law. Fourth, the quarter's own new orders, the HERO Act plans and activation, Executive Order 14042, the Task Force principles and guidance, the Delta-wave face-covering orders of the States and metros, the contractor vaccination orders and the school orders, imposed new compelled modifications between July 1 and September 30, 2021. The suspension that began in March 2020 was, on the instruments' own terms, a suspension "during the calendar quarter" beginning July 1, 2021, and the orders were its but-for cause.
(E) The answers to the Service's grounds for the quarter
That no orders were in effect: the instruments in (B) were in effect, with dates, and the Service's sentence describes a quarter that did not occur. That the industry was "essential": the designation permitted work; it exempted no site from the Cal/OSHA, Virginia, Oregon or Washington standards, from Executive Order No. 192, from the HERO plans, from the face-covering orders, from the Healthcare ETS or from Executive Order 14042, and the statute does not use the word. That the industry could telework: a job site is not performed remotely, and the telework that the offices did perform was itself the compelled modification. That the orders reached customers, not the business: the standards, the HERO Act, Executive Order No. 192, Executive Order 14042 and the face-covering orders reached the business by name and the contractor's workforce by definition. That the measures were voluntary: a plan adopted because Labor Law § 218-b required it, a face covering worn on a Columbus site because Ordinance 2388-2021 required it and an exclusion paid because 8 CCR § 3205(c)(9)(C) required it are not voluntary. That the effect was nominal: an industry whose sites in the largest markets were manned under caps for a year, whose every California, Virginia, Oregon, Washington, New Jersey and New York site operated under a written plan, whose federal work was the subject of a vaccination order and whose supply was delayed at 58.5 percent of its small businesses had more than a nominal portion of its operations delayed, interrupted or terminated, and the ten percent figure is, by the United States' own account, a safe harbor and not a floor. That a declaration is not an order: the instruments in (B) are standards, rules, executive orders, directives, health officer orders and ordinances with operative commands and penalties; the emergency declarations are stated as the instruments under which those orders issued. That the supplier was not closed by order: the border notifications, the port and vessel orders, the scarce-materials designation and the Census finding are the orders and the facts, and Q&A-12 requires no closure of the supplier. That the orders had lifted: the orders in (B) had not lifted, and the suspension the earlier orders caused continued for the reasons stated in (D). That there was no decline in gross receipts: the suspension prong is an independent route, "by Defendant's admission." That the instruments are guidance: a standard adopted under Va. Code § 40.1-22(6a), Labor Code § 142.3, ORS 654.025 or RCW 49.17.050, an executive order under N.J.S.A. App. A:9-33 et seq., a statute of the New York Legislature, an executive order of the President and an ordinance of a city council are not guidance.206
(F) The finding
During the calendar quarter beginning July 1, 2021 and ending September 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the federal workforce, contractor, health-care, conveyance, entry, border and maritime orders (Exs. FED-060, FED-272, SEC-09-006, SEC-09-044, FED-275, SEC-09-019, FED-080, FED-020, FED-051, FED-052, AGY-AVIATION-SURFACE-014, FED-207, FED-208, FED-233, FED-234, FED-257, FED-258; the CDC order as enforced at every sea port and cargo facility through Captain of the Port orders under 33 C.F.R. § 160.216, recorded in the Coast Guard's bulletins, Exs. AGY-USCG-PORTS-037, AGY-USCG-PORTS-038, cited as context; Exs. ECO-A-071, AGY-AVIATION-SURFACE-040), the State workplace standards and exposure plans (Exs. SEC-09-048, SEC-09-014, VA-037, VA-038, VA-045, AGY-ST-LABOR-WORKPLACE-021, OR-048, AGY-ST-LABOR-WORKPLACE-054, AGY-ST-LABOR-WORKPLACE-055, AGY-ST-LABOR-WORKPLACE-056, WA-072, WA-078, WA-077, SEC-09-023, SEC-09-038, NJ-053, ECO-B-120, SEC-09-041, SEC-09-047, NY-071, NM-060, NM-067, NV-041, NV-042, CO-041, CO-055), the face-covering, emergency and school orders of the States and metros (Exs. MET-LA-018, MET-LAS-006, MET-STL-021, MET-SAC-015, DC-057, MET-SFO-010, LA-036, MET-DCM-023, MET-BAL-017, MET-DFW-028, MET-SAT-067, MET-PHL-019, MET-CHI-026, MET-CHI-041, IL-042, MET-BOS-013, MET-CMH-048, MET-CMH-050, CT-052, KY-052, TX-036, GA-043, AL-052, AR-017, RI-054, NY-070, PA-042, NJ-055, CA-034, IL-040), the court orders (Exs. TX-040, TX-041, FL-069, FL-070, MD-091, KY-058, MET-PHX-016, MET-PIT-036, MET-IND-054, MN-054, VA-041, MET-LAS-019), the licensing, recorder and paid-leave instruments (Exs. AGY-ST-TRADE-BOARDS-051, AGY-ST-TRADE-BOARDS-052; the credential extension recorded in the Department of Motor Vehicles' announcement, Ex. AGY-ST-DMV-SOS-RECORDERS-017; Exs. AGY-ST-DMV-SOS-RECORDERS-040, AGY-ST-LABOR-WORKPLACE-003, AGY-ST-LABOR-WORKPLACE-009) and the tribal and territorial orders (Exs. AZ-082, AGY-TRIBAL-040, AGY-TRIBAL-054, AGY-TERRITORIES-036), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by holding every site in six of the largest construction markets under a written plan or a workplace standard with the force of law, by placing every enclosed site, site office and permit counter in the face-covering-order States and metros under workplace infection-prevention and exposure-control requirements, by conditioning every federal, health-care and State-agency engagement on attestation, testing or vaccination and by ordering the vaccination of every covered federal contractor's workforce, by conditioning every import and every transit commute, and by removing every exposed worker and every parent of a quarantined child from the site by order.
What this analysis does not claim was in force
The proof for the third quarter of 2021 rests on none of the following, each of which had expired before July 1, 2021: the construction shutdown and limitation orders of March and April 2020 (Ex. SEC-09-007, construction reopened May 1, 2020; Ex. SEC-09-002, superseded 6:00 a.m. May 18, 2020 by Ex. SEC-09-003; Ex. SEC-09-031, construction permitted 12:01 a.m. May 7, 2020 by Ex. SEC-09-033; Ex. SEC-09-004, superseded Apr. 24, 2020 by Ex. SEC-09-005; Ex. SEC-09-030, relaxed Apr. 20, 2020 by Ex. SEC-09-027; Ex. SEC-09-024, restart completed May 26, 2020 by Ex. SEC-09-026; Ex. MET-NYC-050, construction resumed June 8, 2020; Exs. MET-SFO-002, MET-SFO-034, MET-SFO-047, superseded May 4, 2020 by Exs. SEC-09-040, MET-SFO-003); the mandatory site regimes that ended between May 29 and June 30, 2021 (Massachusetts' Order No. 33 standards, rescinded 12:01 a.m. May 29, 2021 by Ex. MA-048; Pennsylvania's construction guidance, Ex. SEC-09-008, incorporated in the Yellow Phase order (Ex. PA-010) and superseded by the general mitigation orders, which expired 12:01 a.m. May 31, 2021 under Exs. PA-035, PA-036; New York's NY Forward construction guidance, Ex. SEC-09-017, lifted June 15, 2021, with the executive orders rescinded June 25, 2021 by Ex. NY-049; MIOSHA's emergency rules, Ex. AGY-ST-LABOR-WORKPLACE-062, rescinded June 22, 2021; Washington's phased construction requirements, Exs. SEC-09-005, WA-065, ended June 30, 2021 under Ex. WA-072; the Bay Area protocols, Ex. SEC-09-040, ended June 15, 2021; Kentucky's construction requirements, Ex. KY-066, rescinded June 11, 2021 by Ex. KY-049); OSHA's Appendix B listing of construction in DIR 2021-01, Ex. SEC-09-018, after July 7, 2021; the winter re-tightening orders (Exs. CA-020, PA-022, WA-047, CO-081, IL-031, MN-032, NV-030); the 2020 stay-at-home orders of every State (Exs. PA-006, NJ-004, MI-011, WA-016; Ex. CA-002, rescinded June 15, 2021 by Ex. CA-027; Exs. IL-005, MN-010, CO-012, DC-006); the 2020 court closures and filing suspensions (Exs. NY-060, PA-085, IL-062); the FFCRA mandate (Exs. FED-170, FED-171, FED-172, expired December 31, 2020); Proclamations 10014, 10052, 10054 and 10131 (Exs. AGY-FED-LABOR-IMMIGRATION-007, AGY-FED-LABOR-IMMIGRATION-008, expired March 31, 2021); the federal occupancy cap of M-21-15 (Ex. FED-270, lifted June 10, 2021 by Ex. FED-271); the Defense Production Act allocation rule (Ex. FED-075, expired June 30, 2021, though the scarce-materials designation continued under Ex. ECO-A-071); the Navajo Nation's stay-at-home orders (Exs. AGY-TRIBAL-013, AZ-072, AZ-073, ended June 18, 2021 under Ex. AZ-078), its road closures to visitors after July 6, 2021 and its curfew after August 4, 2021; the 2020 closures of the contractors' licensing boards and test centers (Exs. AGY-ST-TRADE-BOARDS-016, AGY-ST-TRADE-BOARDS-017, AGY-ST-TRADE-BOARDS-027); the 2020 building-department and recorder closures (Exs. MET-CLE-002, MET-MSP-004, AGY-ST-DMV-SOS-RECORDERS-114); the Port of Seattle suspension (Ex. AGY-AVIATION-SURFACE-049); Virginia's Emergency Temporary Standard (Ex. SEC-09-012, superseded January 27, 2021 by the Permanent Standard, Ex. VA-037); Nevada's Statewide Pause and mitigation plans (Exs. NV-030, NV-074); and the general business restrictions of every State that ended on the dates the State table records.207 Nor does the proof rest on any instrument that took effect after the quarter closed: Los Angeles County's Health Officer order issued September 17, 2021 and effective 11:59 p.m. October 7, 2021 (Ex. MET-LA-020), Colorado's Seventh Amended Public Health Order 20-38, issued September 30 and effective October 1, 2021 (Ex. CO-054), and the March 2022 revocation of Virginia's standard (Ex. AGY-ST-LABOR-WORKPLACE-043), which is cited only to show that the standard remained in force through September 30, 2021, are post-period instruments and are stated as nothing more.
The quarter the Service's letters most often dispute. The record shows these instruments in force on this industry's functions between July 1 and September 30, 2021; an order in force on any day of the quarter is an order in force during it, and the State, metropolitan and federal layers on the quarter page add to the list.