Findings
On the statute as written, on the definitions the United States agreed to and Tri-State fixed, on the Notice's own favorable provisions and on the orders collected in the Library, the record establishes the following.
The second quarter of 2020
The operation of every employer in home health, home care, hospice, skilled nursing and senior living was partially suspended from March 13 through June 30, 2020 due to orders from appropriate governmental authorities limiting commerce, travel and group meetings, in every State and on every day, by the federal visitation, communal-dining and screening directive of March 13, 2020 (Ex. SEC-04-001), the home health and hospice directives (Ex. SEC-04-010; Ex. SEC-04-011), the transfer and cohorting directive (Ex. SEC-04-026), the section 1135 waivers and the interim final rule of April 6, 2020 (Ex. SEC-04-015; Ex. SEC-04-017), the reporting condition of May 8, 2020 (Ex. SEC-04-006), the State visitation bans and elective-procedure orders, the first universal testing orders (Ex. MD-043; Ex. SEC-04-049; Ex. SEC-04-042; Ex. OH-079; Ex. CT-020; Ex. SEC-04-050), the county congregate-care orders (Ex. MET-LA-066; Ex. MET-MSP-008) and the stay-at-home orders of forty-two States and territories, in the VS, DN, RS, IN, IC, HC, SN, TR, HR, OF, WF and CB functions.280
The third quarter of 2020
The operation of every such employer was partially suspended from July 1 through September 30, 2020 by the federal testing condition and its schedule (Ex. SEC-04-004; Ex. SEC-04-005), the conditional visitation rule of September 17, 2020 (Ex. SEC-04-002), the reopening framework the States adopted by order (Ex. SEC-04-012; Ex. SEC-04-043), the State universal-testing and phased-resumption orders (Ex. SEC-04-050; Ex. AGY-ST-HEALTH-SUBORDERS-075; Ex. WV-045; Ex. LA-050; Ex. TN-019) and the county orders (Ex. MET-DFW-025; Ex. MET-SAT-035), in every State and on every day, in the same twelve functions.281
The fourth quarter of 2020
The operation of every such employer was partially suspended from October 1 through December 31, 2020 by the federal testing and visitation conditions through the winter surge, the State re-tightening and staff-testing orders (Ex. MI-051; Ex. WV-053; Ex. KS-037; Ex. AR-068; Ex. PA-025; Ex. WA-049; Ex. AGY-ST-HEALTH-SUBORDERS-032) and the county and city orders (Ex. MET-DET-001; Ex. MET-LA-024), in every State and on every day, in the same twelve functions.282
The first quarter of 2021
The operation of every such employer was partially suspended from January 1 through March 31, 2021 by the federal testing and visitation conditions, the federal conveyance order from February 1, 2021 (Ex. FED-020), the State residential-care and testing orders of the winter (Ex. SEC-04-075; Ex. OH-075; Ex. NJ-074; Ex. WA-057; Ex. ID-060) and the conditional return of indoor visitation permitted only from March 10, 2021 (Ex. SEC-04-003), in every State and on every day, in the same twelve functions.283
The second quarter of 2021
The operation of every such employer was partially suspended from April 1 through June 30, 2021 by the conditional visitation rule as revised April 27, 2021 (Ex. SEC-04-003), the testing condition (Ex. SEC-04-004), the vaccine-offering and reporting condition effective May 21, 2021 (Ex. SEC-04-008), the State residential-care and testing orders that continued after the general orders ended (Ex. MI-072; Ex. OH-049; Ex. OH-071; Ex. KS-052; Ex. MA-064; Ex. MD-055), the health-care face-covering orders, the occupational airborne-transmission controls those States kept in force after their general mask orders ended (Ex. NJ-050; Ex. MA-050; Ex. WA-070) and, from June 21, 2021, the OSHA Healthcare Emergency Temporary Standard (Ex. SEC-04-014), in every State and on every day, in the same twelve functions.284
The third quarter of 2021
The operation of every such employer was partially suspended from July 1 through September 30, 2021 by the OSHA Healthcare Emergency Temporary Standard on every day of the quarter (Ex. SEC-04-014), the federal testing condition and its September 10, 2021 revision (Ex. SEC-04-004; Ex. SEC-04-073), the federal visitation condition (Ex. SEC-04-003), the vaccine-offering and reporting conditions (Ex. SEC-04-008; Ex. SEC-04-006), the waivers and Appendix K (Ex. SEC-04-015; Ex. SEC-04-078), the conveyance order (Ex. FED-020), the residential-care orders of fifteen States in force on every day, the health-care face-covering orders, the airborne-transmission controls that outlived the general mask orders on the public, and the vaccination or testing mandates of California, New Jersey, New York, Connecticut, Washington, Illinois, Philadelphia, Massachusetts, Maryland, Rhode Island, Maine, Oregon, Colorado, Delaware and the District of Columbia issued between July 26 and September 28, 2021 (Ex. SEC-04-036; Ex. SEC-04-035; Ex. SEC-04-037; Ex. SEC-04-030; Ex. SEC-04-058; Ex. SEC-04-031; Ex. SEC-04-051; Ex. SEC-04-032; Ex. SEC-04-033; Ex. SEC-04-034; Ex. SEC-04-045; Ex. MA-067; Ex. MA-069; Ex. MD-058; Ex. RI-072; Ex. ME-061; Ex. OR-051; Ex. CO-055; Ex. DE-046; Ex. DE-055; Ex. SEC-04-059; the health-professional requirement as the Mayor and DC Health announced it on August 16, 2021, Ex. DC-075), in every State and on every day, in the same twelve functions.285
The Service's grounds
Each of the fourteen grounds on which the Service's letters and examination reports rest is answered above, and none survives the record. The Service's position that no governmental order was in effect in any of these quarters is factually incorrect; its account of a period in which this industry operated free of orders describes a period that did not occur.
The United States' positions
The United States has represented to two federal courts that the Notice has no force of law, that the statute controls, that the ten percent figure is a safe harbor and not a floor, that an order addressed to a third party may suspend a business, that "due to" means "because of" and requires but-for causation, and that a partial suspension is a temporary delay, interruption or termination of a portion of the business. This analysis holds the United States to each of those positions, and the Service is bound by its own published guidance where that guidance favors the employer.286
The standard
Each finding above rests on public records subject to judicial notice under Rule 201(b) and is established by a preponderance of the evidence; the standards of proof and the penalty standards that govern a claim resting on these findings are treated at the standards page.287 Every instrument cited is a public record. Ex. SEC-04-001 and Ex. FED-097 carry the March 9, 2020 text of QSO-20-14-NH; the March 13, 2020 revision is cited as QSO-20-39-NH recites it (Ex. SEC-04-002) and as Public Health Madison & Dane County adopted it in terms (Ex. MET-MKE-002).