Weddings, Events and Production Services

The interconnected economy and the broken leg

This industry sells the group meeting to a public that was ordered to stay home, in rooms that were ordered closed and capped, with a workforce that was ordered to quarantine, on dates that were ordered cancelled, to guests and performers who were ordered not to travel, in halls owned by convention authorities and fair boards that were ordered shut, on inventory from plants that were ordered closed. An order on any of those is an order limiting commerce, travel or group meetings, and an operation of this industry delayed, interrupted or terminated because of it is suspended due to it. The orders of 2020 and the first half of 2021 compelled this industry to dismantle its operation; the orders' own reopening steps show that the restoration ran into and through the third quarter of 2021; and the clause's grammar, Tri-State's definition and the Notice's own words make the continuing suspension a suspension "during the calendar quarter."

The mechanisms

Six mechanisms carried orders addressed to others into this industry's operation. Supply chain and borders: the non-essential manufacturing closures of Michigan, Pennsylvania, New York and New Jersey of March through May 2020 stopped the plants that make staging, truss, lighting, sound, tents and linens; the entry proclamations, land-border notifications, Title 42 order and inbound-testing order closed the movement of foreign performers, cast, crew and cross-border guests from March 2020 to November 8, 2021, and the reciprocal orders of Canada, the European Union, China and Japan closed the routes on which touring and destination work run; the wholesale flower markets closed with non-essential retail and the imported flower moved under the entry and cargo regimes; and the Federal Reserve recorded that "[c]ompanies laid off workers, idled plants, and canceled orders for materials ... by late 2020, factories in some industries were scrambling to find the workers, parts, and materials," that supply-side disruptions "became more widespread" in July 2021 and that the third quarter's slowdown reflected "a pullback in dining out, travel, and tourism ... and, in a few cases, international travel restrictions."²⁰² Workforce, schools and child care: every public school building in the country was closed by March 25, 2020 and forty-eight States closed for the rest of the year; the remote and hybrid orders of 2020-21 and the face-covering and quarantine orders of 2021-22 followed; the FFCRA leave mandate governed every employer under 500 through December 31, 2020; the quarantine and isolation orders of every State and county removed exposed staff for ten to fourteen days in every quarter; and the vaccinate-or-test mandates of 2021 on school, health-care, State and municipal employees conditioned the second jobs of the industry's part-time crews.²⁰³ Travel, tourism and gatherings: the interstate traveler quarantines of twelve jurisdictions and Chicago, with New Jersey's advisory, made every out-of-State guest a fourteen-day absence in the Northeast, Hawaii, Alaska, New Mexico, Kansas, Pennsylvania and Chicago for the periods they ran; Hawaii's Safe Travels condition governed every trans-Pacific arrival to March 2022; the gathering caps of every State ended the destination-wedding, convention and festival calendar; and the destination markets of Las Vegas, Orlando, Honolulu, New Orleans and Charleston lost their customer base to the orders of the States their customers came from.²⁰⁴ Courts and public offices: the film, special-event and liquor permit offices and the marriage-license counters closed to walk-in service; the courts that enforce the industry's contracts suspended calendars through 2020 and re-imposed face coverings and screening in the third quarter of 2021; the fair boards and convention authorities cancelled seasons.²⁰⁵ Transit: the CDC conveyance order, the TSA directives and the transit agencies' service cuts and enforcement of the federal face-covering rule conditioned every commute, every touring flight and every guest's journey from February 1, 2021 through the third quarter of 2021, and the agencies' 2020 cuts conditioned them before that.²⁰⁶ Health care as counterparty: the elective-procedure orders of 2020 governed the on-set medics and the clinics that test the workforce; the health-care-worker vaccination orders of fourteen jurisdictions from July 26, 2021 conditioned the medical staff of every large event and the part-time staff who also worked in a clinic.²⁰⁷

Counterparty orders as orders

The statute's object is "commerce, travel, or group meetings," not the employer's premises. The Notice's Q&A-12 applies the clause exactly so, making an employer eligible "because its operations have been suspended due to the governmental order that suspended operations of its supplier," and the United States told the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party."²⁰⁸ The supplier of a planner is the venue whose room was capped, the caterer whose service was seated-only and the hotel whose ballroom was closed to meetings; the supplier of a florist is the wholesale market closed with non-essential retail and the importer behind the border notices; the supplier of a band is the venue and the airline; the supplier of a staging company is the fair board and the convention authority whose seasons the State gathering orders cancelled and the plant that was closed by order; the supplier of a production company is the county health officer's protocol, the union whose return-to-work agreement tracked it and the consulate that admits its cast; the supplier of every one of them is the school that lets its crew leave the house. Each was closed or conditioned by order, and the operations that depended on it were suspended in part because of the order in the only sense the statute uses. A stay-at-home order on the couple, the family and the corporate customer is itself an order "limiting commerce, travel, or group meetings" in terms, and the Notice lists it as one; a gathering cap is an order limiting group meetings in terms; the commerce and the meetings they limited were this industry's.²⁰⁹

The textual point

The clause reads "is fully or partially suspended during the calendar quarter due to orders." The phrase "during the calendar quarter" modifies "suspended"; it asks whether the suspension existed at any time in the quarter, not whether an order was issued in or addressed to the quarter. Congress did not write "orders in effect during the calendar quarter."²¹⁰ Tri-State holds that a suspension includes a "delay" and that causation is but-for.²¹¹ The Notice recognizes both propositions: Q&A-22 makes an employer whose suspension ends in the middle of a quarter eligible for the whole quarter, and Q&A-16 treats a "significant delay" in moving between modes of operation as itself "a partial suspension during that transition period," offering its two-week figure only "for example."²¹² An operation ordered to zero on March 23, 2020, permitted ten guests in May, fifty in June, held at fifty through the winter, permitted 150 with testing in March 2021, 250 in May and its full room only in June 2021 was delayed by those orders on every day between, and the delay did not end on the day the last cap lifted. The Chief Counsel memorandum that asks whether a lifted order "constitute[s] a governmental order in subsequent calendar quarters" asks the wrong question, and it "may not be used or cited as precedent."²¹³

The restoration arithmetic for this industry

What the orders compelled this industry to dismantle is recorded in the orders themselves, and the time the orders' own reopening steps took to permit its restoration is recorded in their dates. The industry sells dates six to eighteen months ahead; an order that caps a date is a cancellation or a rebooking of the entire vendor chain, and a season rebooked into the following year is a season the orders moved. The table states the step dates for the reception room in nine of the industry's largest markets; the paragraph that follows states them in full.

Wedding and reception venues: New York cancelled every gathering of any size on March 23, 2020, permitted ten on May 22, twenty-five on June 15 and fifty and fifty percent on June 26, 2020, held the cap at fifty for eight and a half months, permitted catered events at the lesser of seventy-five percent or 150 with testing, notice and sign-in on March 15, 2021, 250 on May 19 and the full room only on June 15, 2021. New Jersey barred every indoor event from March 21 to June 8, 2020, permitted fifty on June 9 and 100 on June 22, cut to twenty-five with weddings at 100 on August 4 and 150 on September 4, cut general indoor gatherings to ten on November 17, 2020, permitted weddings and catered events at thirty-five percent up to 150 on March 19, 2021, dance floors at fifty percent up to 250 on May 7, 250 on May 19 and the full room on June 4, 2021. Massachusetts capped gatherings at ten from March 24 to July 6, 2020, twenty-five indoors and 100 outdoors from July 6 (Ex. MA-024), fifty to 100 at event venues from October 5 (Ex. MA-032), twenty-five and fifty at venues from November 6 (Ex. MA-034) and under Order No. 57 from December 13 (Ex. MA-038), twenty-five percent of capacity from December 26, 2020 (Ex. MA-040), ten and twenty-five from February 8, 2021 (Ex. MA-043), 100 indoors and 150 outdoors at event venues from March 22 (Ex. MA-043; Ex. MA-045) and the full room on May 29, 2021 (Ex. MA-048), with dance floors from May 10 (Ex. MA-047). Michigan capped at ten from June 1, 2020, prohibited every indoor non-residential gathering from November 18, 2020 to January 31, 2021, permitted ten on February 1, twenty-five on March 5, fifty percent on June 1 and the full room on June 22, 2021. Illinois capped at ten to June 25 and fifty from June 26, 2020, closed banquet centers to gatherings of any size from November 20, 2020, restored fifty between January 15 and February 4, 2021 and released the room on June 11, 2021. Minnesota permitted venues at twenty-five and fifty percent from May 26 and June 10, 2020, prohibited receptions from November 20 to December 18, 2020, permitted fifty from February 13, 2021 and fifty percent up to 250 from March 15 and released the room on May 27, 2021. Pennsylvania capped indoor events at twenty-five from July 16, 2020, ten percent from November 27, ten persons from December 12, 2020 to January 4, 2021, fifteen percent from March 1, twenty-five percent from April 4 and fifty percent from May 17, and its orders expired May 31, 2021. California permitted no indoor private event of any size from March 19, 2020 to April 15, 2021, then only with every guest tested or vaccinated and no more than 200 to June 15, 2021, and every indoor event of 5,000 (1,000 from September 20) under verification thereafter. Washington prohibited every gathering from March 23, 2020, permitted five and then ten, prohibited receptions and business meetings from November 17, 2020, permitted venues at twenty-five percent or 200 and fifty percent or 400 under Healthy Washington, and released the room on June 30, 2021 with the over-10,000 rule continuing and universal indoor face coverings returning August 23. Hawaii capped at ten from March 25, 2020, governed by county tier through mid-2021, and re-capped social gatherings at ten and twenty-five and restaurants, bars and social establishments at fifty percent on August 10, 2021.²¹⁴ A venue's banquet staff, its vendor relationships, its bar inventory and its calendar are built over months on a room that can be filled; on June 15, 2021 in New York, June 4 in New Jersey, May 29 in Massachusetts, June 22 in Michigan, June 11 in Illinois, May 27 in Minnesota, May 31 in Pennsylvania, June 15 in California and June 30 in Washington the room became fillable and the rebuilding began, and on July 1, 2021 it was days or weeks old. The Knot's national study records the result: an average 2020 guest count of 66 against 131 in 2019, 47 percent of 2020 weddings or receptions moved to 2021 or later, 93 percent "adjusted to comply with local event restrictions or rescheduled," and a 2021 average still at 105 with 27 percent of 2021 weddings postponed from 2020.²¹⁵ The July, August and September 2021 calendar of every venue in those States was the calendar the orders had let it keep: dates booked in 2019, cancelled in 2020, rebooked into 2021 at the caps and performed in the third quarter under Key to NYC, Hawaii's caps or the face-covering orders. Fairs, festivals and conventions: the 2020 State fairs of Oregon, Ohio, Minnesota, Iowa, New York, North Carolina, Kansas and Missouri were cancelled by their boards under the State gathering orders, the 2021 Pennsylvania Farm Show was virtual, Coachella and Stagecoach were cancelled for 2020 and April 2021 by county order, McCormick Place was closed from March 2020 to July 2021, the Javits Center hosted no event from March 10, 2020 and became a vaccination center in January 2021, the Pennsylvania Convention Center reopened in June 2021 and Boston's center hosted its first public convention on September 3, 2021.²¹⁶ The Library's meetings collection sets those events beside the organizers' own notices and the venue orders in force on their dates. A staging, lighting, sound or tent company builds its year around those bookings; the 2021 fair and convention season was the first in eighteen months, built on crews and inventory idled since March 2020 and, from August 2021, under the face-covering, verification and mega-event rules of eight States and the largest metros. Production: Los Angeles County closed production on March 20, 2020, reopened it on June 12, 2020 under Appendix J and kept it under Appendix J on every day of the third quarter of 2021 with the County's face-covering order added from July 17; New York closed production in March 2020 and reopened it from June 23, 2020 under the Interim Guidance to June 2021; permitted Los Angeles shoot days fell 54.5 percent in the third quarter of 2020, and the production calendar of the third quarter of 2021 was the calendar the protocols had let studios schedule.²¹⁷ An employer whose operation was ordered suspended through June 30 was not walking normally on July 1, and the orders' own step dates fix the arithmetic.

What was still in force when the general restrictions ended

When the spring 2021 caps lifted State by State between April 6 and July 6, 2021 (Hawaii's returning statewide on August 10 and lifting only on December 1, 2021), the following remained in force and are relied on as the orders they are: the federal conveyance order and TSA directives; the entry proclamations, land-border notices, Title 42 order, testing order and Conditional Sailing Order; Executive Order 13991 and, from July 29, the federal workplace masking reinstatement and the approval requirement for federally hosted events of more than fifty; the State emergencies of thirty-five jurisdictions on July 2 and twenty-five on September 21, 2021 and the new emergencies of Alabama, Arkansas, New York and the metros; Washington's over-10,000 rule and California's mega-event rule from June 30 and June 15; Rhode Island's Reopening Order to July 6 and venue regulation to August 31; Delaware's State of Emergency to July 13; Hawaii's proclamation and county tiers and, from August 10, its statewide caps; Nevada's Directives 044 and 045 and county plans; New Jersey's Executive Order 192 workplace rules; Virginia's, Oregon's and California's workplace standards; the unvaccinated-person face-covering rules of eight States, the exposure-control requirement those States kept when they lifted their caps; the school face-covering and quarantine orders of the 2021-22 year; the quarantine and isolation orders of every State and county; the vaccination-or-test mandates of more than twenty States and a dozen cities; the alcohol and gaming regulators' conditions in New Jersey, New York, Louisiana and Nevada; and, from July 17 onward, the face-covering, vaccination-proof, mega-event, gathering-cap, event-closure and permit-revocation orders of eight jurisdictions and more than thirty metros catalogued in the six-quarters section.²¹⁸ They are not the residue of a suspension; they are orders limiting commerce, travel and group meetings in force during the calendar quarter, and the operation they reached was the one the orders of the preceding fifteen months had left for this industry to rebuild.